COMMON CAUSE FLORIDA et al v. BYRD et al

Filing 222

ORDER entered by JUDGE ALLEN C WINSOR on 3/27/24. This order constitutes the findings of fact and conclusions of law of the three-judge Court following a bench trial held in September and October of 2023. Plaintiffs had to prove both discriminatory effects and a discriminatory purpose. They proved neither. Thus, the decision is to grant judgment in favor of the Secretary. (tss)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
COMMON CAUSE FLORIDA, et al.,
Plaintiffs,
v.

Case No. 4:22-cv-109-AW-MAF

CORD BYRD, in his official capacity as
Florida Secretary of State,
Defendant.
_______________________________/
Before JORDAN, Circuit Judge, and RODGERS and WINSOR, District Judges.
PER CURIAM:
This order constitutes the findings of fact and conclusions of law of the three-judge
Court following a bench trial held in September and October of 2023.

I.

PROCEDURAL HISTORY

This case involves constitutional challenges to the congressional districting map
proposed by Governor Ron DeSantis and enacted by the Florida Legislature in 2022 (the
Enacted Map). The litigation actually began in March of 2022—over a month before the
Enacted Map became law—when some plaintiffs (Common Cause Florida, FairDistricts
Now, Dorothy Inman-Johnson, Brenda Holt, Leo R. Stoney, Myrna Young, and Nancy
Ratzan) sued Florida’s Secretary of State, several Florida legislators in charge of
reapportionment, and Governor DeSantis for congressional malapportionment. See D.E.
1. The case was assigned to Judge Winsor, and after his notification pursuant to 28 U.S.C.
§ 2284(b)(1), the Chief Judge of the Eleventh Circuit designated Judge Jordan and Judge
Rodgers to sit on this three-judge Court. See D.E. 3–6. Once the Enacted Map became

law on April 22, 2022, the plaintiffs’ malapportionment claims became moot. See D.E. 86;
D.E. 96.
In May of 2022, with the Enacted Map now in place, the plaintiffs amended their
complaint to assert intentional vote dilution claims under the Fourteenth and Fifteenth
Amendments to the U.S. Constitution. See D.E. 97. The complaint also added the Florida
State Conference of the National Association for the Advancement of Colored People
Branches as a plaintiff. See id. More specifically, the plaintiffs alleged that the Florida
Legislature destroyed a Black-performing congressional district in North Florida to
intentionally dilute the vote of Black voters. This time, the plaintiffs sued only Florida’s
Secretary of State, Laurel M. Lee, and Governor DeSantis. Soon thereafter, Secretary Cord
Byrd was substituted as a defendant for the now former Secretary Lee. See D.E. 103. In
November of 2022, we dismissed the plaintiffs’ claims against Governor DeSantis, leaving
only Secretary Byrd as a defendant. In a 2-1 decision, we denied Secretary Byrd’s motion
to dismiss the plaintiffs’ claims. See D.E. 115.
Parallel to this case, on April 22, 2022, another set of plaintiffs sued the Secretary
and various legislators in Florida state court for violating the Florida Fair Districts
Amendments to the Florida Constitution, see Fla. Const. art. III, §§ 20–21 (the FDA),
including its non-diminishment provision. See Compl., Black Voter Capacity Bldg. Inst.,
Inc. v. Sec’y of State Lee, No. 2022 CA 0666 (Fla. 2d Jud. Cir. Ct.). The parties in that case
stipulated to certain material facts—mainly that there is no longer a Black-performing
congressional district in North Florida—and asked the trial court to decide various legal
questions. See Final Order After Hearing and Final Judgment, D.E. 348 at 8–13. Those
questions included (1) whether the preconditions in Thornburg v. Gingles, 478 U.S. 30
(1986) (the “Gingles factors”) under § 2 of the Voting Rights Act, 52 U.S.C § 10301, apply
to the non-diminishment provision of the FDA, and (2) whether that same provision, either
facially or as-applied to the congressional districts in North Florida, violates the U.S.
Constitution’s Equal Protection Clause. See id. at 14. The trial court held that the Gingles
factors do not apply and that the FDA’s non-diminishment provision is consistent with the
U.S. Constitution. See id. at 24, 31. The trial court then declared that the Enacted Map
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constituted an unconstitutional diminishment under the FDA. See id. at 54. The defendants
appealed to Florida’s First District Court of Appeal, which convened en banc and reversed
the trial court on December 1, 2023, in an 8-2 decision (with three judges recusing). See
Sec’y of State Byrd v. Black Voters Matter Capacity Bldg. Inst., Inc., 375 So. 3d 335 (Fla.
1st DCA 2023) (en banc). The Florida Supreme Court has agreed to hear the case. See
Black Voters Matter Capacity Bldg. Inst., Inc. v. Byrd, 2024 WL 370045 (Fla. 2024).
Returning to our case, the plaintiffs filed their second amended complaint (the SAC)
in February of 2023. See D.E. 131. The changes were mainly cosmetic, although the SAC
did add five individual plaintiffs (Cassandra Brown, Peter Butzin, Charlie Clark, Veatrice
Holifield Farrell, and Rosemary McCoy). See D.E. 129. The SAC is the operative
pleading.
In August of 2023, we denied as moot Secretary Byrd’s partial motion for summary
judgment as to various congressional districts because the plaintiffs clarified that their
challenge was limited to districts in North Florida. See D.E. 178. Before trial, the parties
stipulated that Benchmark CD-5 (as re-configured in 2016) is now divided among Enacted
CD-2, CD-3, CD-4, and CD-5. See Joint Pre-Trial Report, D.E. 187 at 7. Neither side
moved for summary judgment on the merits.
The parties agree that the plaintiffs’ SAC raises intentional vote dilution claims
under the Fourteenth and Fifteenth Amendments to the U.S. Constitution. Their joint pretrial report and post-trial briefs reflect this understanding. See Joint Pre-Trial Report, D.E.
187 at 8 (“The sole issue of fact that remains to be litigated is whether or not . . . intentional
discrimination on the basis of race was the reason, at least in part, for the elimination of
Benchmark CD-5 and the failure to replace it with a Black-performing district in North
Florida.”) (emphasis added); Plaintiffs’ Post-Trial Br., D.E. 218 at 117 (“Intentional vote
dilution claims like the one [p]laintiffs bring here are ‘analytically distinct’ from racial
gerrymandering claims and claims brought under Section 2 of the Voting Rights Act.”);
Secretary’s Post-Trial Br., D.E. 217 at 66 (“[W]e again emphasize that this case is solely
about whether the Enacted Map was passed with invidious racially discriminatory intent
and effect, in violation of the Equal Protection Clause and Fifteenth Amendment.”).
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The parties also agree that the proper legal framework to evaluate the plaintiffs’
claims is set out in “Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), with the additional factors added by the [Eleventh] Circuit in
Greater Birmingham Ministries v. Secretary of State for State of Alabama, 992 F.3d 1299
(11th Cir. 2021).” Joint Pre-Trial Report, D.E. 187 at 8. Both sides disavow that this is a
constitutional racial gerrymandering case under Shaw v. Reno, 509 U.S. 630 (1993). See
Plaintiffs’ Post-Trial Br., D.E. 218 at 117; Secretary’s Post-Trial Br., D.E. 217 at 67.1
We held a four-day bench trial in Tallahassee during the weeks of September 25 and
October 2, 2023, and later received post-trial submissions from the parties.

II.

BACKGROUND FACTS
A. Florida History

Florida has a long and turbulent history of denying and suppressing the electoral
voice of Black Americans. For over a century, the Legislature passed discriminatory laws
and redrew maps to limit ballot access and disenfranchise generations of Black voters. See
Tr. 335–57, 875–84.

These measures not only deprived Black Americans of their

constitutional right to vote, but all too often stoked acts of violence that claimed lives and
destroyed communities. See Tr. 343–45, 876–77.
Lawmakers in Tallahassee today, of course, do not bear responsibility for the
injustices committed by their predecessors a century ago. Nor do we conflate the events
of this case with the events of the distant past. We do, however, view the history of voter
discrimination in Florida as relevant background for contextualizing the claims before us.
The congressional map at issue in this case impacts a region of North Florida known
as the “Slave Belt.” In the antebellum period, this region was heavily dependent on a
plantation economy made possible by coerced labor. See Tr. 336, 889. As a result, at the
outbreak of the Civil War, the enslaved population of Florida was highly concentrated in
this region. See Tr. 336; PX 4558. Enslaved laborers in certain counties of the Slave Belt—

In a racial gerrymandering case, the plaintiffs need to show that race predominated above all other
traditional redistricting criteria. See Cooper v. Harris, 581 U.S. 285, 291–92 (2017).
1

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such as Gadsden, Leon, Jefferson, and Madison—constituted more than half of the overall
population in those areas at the time. See PX 4558. The Black population that currently
resides in the former Slave Belt shares a lineal connection to those enslaved men and
women and comprise a large share of Florida’s overall Black population today. See Tr.
889–90. A map depicting the slave population in Florida in the 1860s, including the former
Slave Belt, was introduced at trial and we reproduce it here:

PX 4558.2
Despite their outsized presence in the former Slave Belt, Black voters in North
Florida struggled to elect their preferred candidates following the Civil War. The facts are
as startling as they are undeniable. For more than a century, from 1877 to 1993, Florida

Secretary Byrd criticized this map because it was drawn by a Democratic map maker and because it did
not include total population numbers. But he did not show that the map was inaccurate with respect to what
it sought to show.
2

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failed to elect a single Black candidate to national office. See Tr. 356, 880. Florida
similarly did not elect a single Black candidate to the Florida House from 1888 to 1969.
See Tr. 356, 880. The same is true of the Florida Senate, which saw its first Black elected
official in 1982. See Tr. 356, 880. These prolonged disparities in representation were not
coincidental—they were engineered through deliberate legislation and careful map
drawing that for decades targeted Black voters both at and beyond the ballot box.
Florida employed a wide array of tactics over this span of time. In 1868, for
instance, the Florida Constitution instituted a scheme that awarded white-majority counties
disproportionate power in elections and all but codified a malapportioned legislature. See
Tr. 337, 876. Lawmakers would further silence and suppress Black voters in subsequent
decades by, among other things, implementing poll taxes and “Eight Box Laws,” which
required voters to deposit separate ballots in separate boxes and effectively disenfranchised
illiterate persons. See Tr. 342–43, 876. Other measures, such as the categorical ban on
Black participation in Democratic primaries, were even more conspicuous. See Tr. 344,
876.
Black voters often faced outright violence in Florida when they attempted to
participate in the electoral process despite such obstacles. As an example, in 1920, a local
campaign to register Black voters in a small town outside Orlando known as Ocoee
produced one of the bloodiest days in modern U.S. political history. See Tr. 344, 876. A
similar effort to register Black voters would decades later result in the assassination of
Harry T. Moore, the president of the Florida NAACP chapter, in 1951. See Tr. 345, 876.
The latter half of the 20th century saw an expansion in ballot access for Black voters
amid new forms of voter discrimination in Florida. See Tr. 348, 877. Indeed, despite the
passage of the Voting Rights Act in 1965, the adoption of subtle countermeasures, such as
voter roll purges and at-large elections, would prevent Black voters in Florida from electing
their candidate of choice to Congress for several decades. See Tr. 353–54, 877–80.
In 1992, a broad national effort to enforce Section 2 of the Voting Rights Act, 52
U.S.C § 10301, prompted Florida to create its first set of Black-performing districts. See
Tr. 25, 355, 859. The following year, Black voters in these recently formed districts elected
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Corrine Brown, Alcee Hastings, and Carrie Meek to the U.S. House of Representatives—
the first Black members of Congress to represent Florida since Reconstruction. See Tr.
859, 862. These districts would undergo drastic changes in subsequent years. In North
Florida, for instance, CD-3, which originally ran North-South from Jacksonville to
Orlando, became Benchmark CD-5 in 2012, running East-West from Jacksonville to
Tallahassee. See Tr. 62−63, 66, 161, 357−59; Plaintiffs’ Post-Trial Br., D.E. 218 at 76.
Despite the Black Voting-Age Population (the BVAP) not exceeding 50% across such
iterations, the district performed consistently for Black voters for three decades until its
elimination by the Florida Legislature in 2022. See Tr. 357–59, 885.
B. Florida’s Fair Districts Amendments
In Florida, the Legislature bears the responsibility of drawing congressional and
state maps. See Fla. Const. art. III, §§ 7, 16, 20, 21; Tr. 9. In 2010, 62% of Florida voters—
by way of referendum—enacted the FDA to the Florida Constitution. See Tr. 360; Fla.
Const. art. III, §§ 20–21. The FDA imposes redistricting standards on the Legislature that
apply equally to the drawing of congressional and state legislative maps. Its impact on
redistricting in Florida cannot be understated.
The FDA contains “Tier 1” and “Tier 2” standards. See Fla. Const. art. III, §§ 20(a),
20(b). Tier 2 is subordinate to Tier 1.
Tier 1 provides:
No apportionment plan or individual district shall be drawn
with the intent to favor or disfavor a political party or an
incumbent; and districts shall not be drawn with the intent
or result of denying or abridging the equal opportunity of
racial or language minorities to participate in the political
process or to diminish their ability to elect representatives of
their choice; and districts shall consist of contiguous territory.
§ 20(a) (emphases added). The bolded text is the “non-dilution” clause. See In re Senate
Joint Resol. of Legislative Apportionment 1176, 83 So. 3d 597, 619 (Fla. 2012)
(Apportionment I). The italicized text is the “non-diminishment” clause. See id. These
provisions are modeled after Sections 2 (vote dilution) and 5 (retrogression), respectively,

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of the Voting Rights Act, but the Florida Supreme Court does not interpret them exactly as
the U.S. Supreme Court interprets the VRA. See id. at 620–21.
Tier 2 provides:
Unless compliance with the standards in this subsection
conflicts with the standards in subsection (a) or with federal
law, districts shall be as nearly equal in population as is
practicable; districts shall be compact; and districts shall,
where feasible, utilize existing political and geographical
boundaries.
Fla. Const. art. III, § 20(b).
The order of the requirements within each Tier do not establish priority. See id. at
§ 20(c).
C. The 2012 Redistricting Cycle and Benchmark CD-5
The FDA first applied during the 2012 redistricting cycle. Its misapplication by the
Florida Legislature led to no fewer than eight Florida Supreme Court decisions, see Tr.
365, culminating in League of Women Voters of Fla. v. Detzner, 179 So. 3d 258 (Fla. 2015)
(Apportionment VIII).
In one such case—League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla.
2015) (Apportionment VII)—the Florida Supreme Court ordered the redrawing of CD-5 to
cure the Legislature’s unconstitutional (under the FDA) partisan gerrymander. The trial
court found that political operatives infiltrated the redistricting process and improperly
influenced the Legislature to draw Republican-slanted maps. See id. at 392. The Florida
Supreme Court affirmed these findings. See id. at 416 (“[W]e affirm the trial court’s factual
findings and ultimate determination that the redistricting process and resulting map were
‘taint[ed]’ by unconstitutional intent to favor the Republican Party and incumbents.”).
In Apportionment VII, the Legislature drew CD-5 from Jacksonville to Orlando to
ostensibly comply with the VRA and with the FDA’s non-diminishment provisions. See
id. at 402. The plaintiffs in that case argued that the Legislature packed “Democraticleaning black voters into the district” to dilute their vote elsewhere. See id. To fix the
issue, the plaintiffs proposed a CD-5 configuration that bordered much of Georgia from

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Jacksonville to Tallahassee. See id. at 404. The Legislature rejected the proposal because
that plan would have lowered BVAP percentages from 48.11% to 45.12%—an illegal
diminishment (under the FDA and VRA) in the Legislature’s view. See id. at 405.
The Florida Supreme Court rejected the Legislature’s BVAP argument, reasoning
instead that “BVAP itself cannot be viewed in a vacuum.” Id. (citing Alabama Legislative
Black Caucus v. Alabama, 575 U.S. 254, 275–76 (2015)). It is the “ability to elect a
preferred candidate of choice” that matters. Apportionment VII, 172 So. 3d at 405. To
determine whether a district performs for minority voters in that way, mapmakers must
perform a “functional analysis.” Apportionment I, 83 So. 3d at 625. In Florida, a functional
analysis requires the consideration of “(1) voting-age populations; (2) voting-registration
data; (3) voting registration of actual voters; and (4) election results history.” Id. at 627.
Given the Legislature’s unconstitutional partisan gerrymander in violation of the
FDA, the Florida Supreme Court in Apportionment VII mandated the plaintiffs’ proposed
configuration of CD-5 (i.e., Benchmark CD-5) as depicted below in purple:

Apportionment VII, 172 So. 3d at 406; PX 7222. Benchmark CD-5’s configuration was
very similar to one previously drawn by the Legislature’s own mapmaker, Alex Kelly, who
also drew the Enacted Map at issue here. See Apportionment VII, 172 So. 3d at 403–04
(“[L]egislative staffer Alex Kelly initially drew an East-West version of the district, with a

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BVAP of 44.96%, and concluded that such a configuration would be constitutionally
compliant.”).3
Though not a “model of compactness,” the Florida Supreme Court reasoned that the
East-West Benchmark CD-5 was better than the Legislature’s alternative and accounted for
geography as well as the FDA. See id. at 406. As will become relevant later, the Florida
Supreme Court did not opine on Benchmark CD-5’s compliance with the Fourteenth
Amendment to the U.S. Constitution.
The parties disagree on whether Benchmark CD-5 constitutes a “community of
interest” and whether that can be considered for purposes of redistricting. See Tr. 241–42,
658. Generally speaking, a community of interest refers to a “geographic or socioeconomic
or policy-interested group that share a . . . common interest or characteristic.” Tr. 793. The
Florida Supreme Court has held that, under the FDA, “maintaining communities of interest
is not a constitutional requirement, and comporting with such a principle should not come
at the expense of complying with constitutional imperatives, such as compactness.”
Apportionment I, 83 So. 3d at 664. The U.S. Supreme Court has, however, recognized it
as a traditional redistricting criterion. See Bush v. Vera, 517 U.S. 952, 964 (1996) (plurality
opinion) (listing “shared broadcast and print media, public transportation infrastructure,
and institutions such as schools and churches” as relevant to defining a community of
interest); see also Allen v. Milligan, 599 U.S. 1, 20–21 (2023) (considering communities of
interest under Alabama law). The term nonetheless remains ill-defined. See Sandra J.
Chen et al., Turning Communities of Interest into a Rigorous Standard for Fair Districting,
18 Stan. J.C.R. & C.L. 101, 107 (2022).
Setting that definitional dispute aside for now, the population in Benchmark CD-5
did share various common characteristics. Relative to the enacted districts it was later
divided into, Benchmark CD-5 had younger residents, lower household incomes, higher

Mr. Kelly testified at trial that the Florida Supreme Court “missed the context” of his map submission
because he never opined on its constitutionality. See Tr. 67. Moreover, Mr. Kelly testified that he only
drew that configuration of CD-5 to memorialize a hand-drawn submission from a member of the public.
See Tr. 204. We need not address this aspect of Mr. Kelly’s testimony.
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rates of adults and children living below the poverty line, and lower rates of persons with
a high school diploma or college degree. See PX 5042-0018. The plaintiffs’ expert
historian, Dr. J. Morgan Kousser, testified that the population in Benchmark CD-5 also
shared in a lack of health insurance and a greater dependence on Medicaid. See Tr. 383.
And Dr. Mark Edwards Owens, an expert witness for the Secretary, agreed that Benchmark
CD-5 overlapped significantly with the former Slave Belt. See Tr. 889–90.
D. The 2022 Redistricting Cycle
In Florida, congressional districting maps are drawn by both chambers of the
Legislature and enacted as legislation, subject to gubernatorial veto. See Fla. Const. art.
III, §§ 7, 8, 20; Joint Pre-Trial Report, D.E. 187 at 4. The Legislature may override the
Governor’s veto by a two-thirds vote in each chamber. See Fla. Const. art. III, § 8(c); Joint
Pre-Trial Report, D.E. 187 at 4. State legislative plans, on the other hand, are enacted by
joint resolution in the Legislature and are not subject to gubernatorial veto. See Fla. Const.
art. III, §§ 16, 21. State legislative plans must, however, undergo judicial review. See Fla.
Const. art. III, § 16(c). In turn, the Florida Supreme Court must, in accordance with its
own rules, “permit adversary interests to present their views” on the joint resolution before
entering its judgment on the validity of the legislative apportionment. See id.
In 2020, Florida received an additional seat in Congress after the most recent
census—increasing its share of congressional seats from 27 to 28. See Joint Pre-Trial
Report, D.E. 187 at 4. The Legislature began its redistricting process in late 2021 by
considering several maps that resembled the East-West Benchmark CD-5 initially drawn
by the Florida Supreme Court in the previous redistricting cycle. See Tr. 69−70.
The Legislature was determined to produce a congressional redistricting map that
complied with the FDA by maintaining a Black-performing district in North Florida. See
Tr. 71, 369−70.

Senator Ray Rodrigues, Chair of the Senate Subcommittee on

Congressional Reapportionment, stated that he “intend[ed] for this [redistricting]
committee to conduct the process in a manner . . . consistent with case law . . . developed
during the last decade . . . and . . . free from any hint of unconstitutional intent.” JX 0001
at 15; Tr. 370. Representative Tom Leek, Chair of the House Redistricting Committee,
11

expressed a similar sentiment, stating: “The House will conduct this process in compliance
with the Florida Constitution and . . . relevant court preceden[t].” JX 0003 at 7; Tr. 372.
On January 13, 2022, the Senate Subcommittee on Congressional Reapportionment
submitted four prospective plans, each of which retained a Black-performing district in
North Florida. See Tr. 375; Plaintiffs’ Post-Trial Br., D.E. 218 at 123. According to Dr.
Kousser, one of the plaintiffs’ expert witnesses, “[a]ll the plans ha[d] basically the same
district in North Florida . . . . It’s the district that had been set up in 2016 by the legislature
under court orders, cleaned up a little . . . but it’s essentially the same district.” Tr. 375.
Governor DeSantis opposed the Senate Subcommittee’s preliminary plans three
days later. See Tr. 73−74. As part of the public input process, the Governor proposed an
alternative congressional map (Map 79), which divided Benchmark CD-5 into four
districts. See PX 5053; Tr. 82−83. This map did not preserve a Black-performing district
in North Florida. See Tr. 83, 432−34. The Governor’s production and submission of a
congressional redistricting map was unprecedented in Florida history. See Tr. 75, 434,
898.4
In an accompanying press statement, Governor DeSantis explained his proposed
elimination of the only Black-performing district in North Florida. He asserted that the
“Northern Florida map [was] an unconstitutional gerrymander that unnaturally connect[ed]
communities in Jacksonville with communities hours away in Tallahassee and Gadsden
Counties [sic].” Tr. 83.
The plaintiffs claim that the Governor’s proposed map deliberately “cracked”
Benchmark CD-5 into “four white districts” to eliminate a Black-performing district in the
region. See Tr. 10, 83. Mr. Kelly, who was called by a witness by both sides, denied that
allegation, testifying that Map 79 “split” Benchmark CD-5 because Governor DeSantis

The parties agree that during their tenures Florida Governors Thomas LeRoy Collins and Lawton Chiles
had lobbied the Legislature for alternative congressional maps. See Tr. 434, 439. Similarly, the parties
agree that in 1982, “House and Senate leaders, working with [Florida Governor Bob] Graham, had privately
worked out a compromise [redistricting] plan.” Tr. 438. No Florida governors, however, had previously
produced and submitted a map themselves. See Tr. 42, 420, 434, 552, 898.
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believed it constituted “an unconstitutional gerrymander” under the Equal Protection
Clause of the Fourteenth Amendment. See Tr. 55, 72, 83, 87, 94.5
The Florida Senate rejected the Governor’s constitutional argument on January 20,
2022, and passed, by a vote of 31 to 4, a congressional redistricting plan (Map 8060) that
retained a Black-performing CD-5 in North Florida. See PX 5062; Tr. 10, 74, 86−87,
395−96.

According to Senator Rodrigues, the Florida Senate had fulfilled its

reapportionment responsibility because Map 8060 complied with the Tier 1 nondiminishment standard of the FDA. See Fla. Const. art. III, § 20(a). In his own words, the
senators who supported Map 8060 were “a hundred percent confident that there [was] no
retrogression with the map” and were “prepared to defend that map in court, if necessary.”
JX 0027 at 3; Tr. 85.
On February 1, 2022, Governor DeSantis responded to Map 8060 by requesting an
advisory opinion from the Florida Supreme Court. See Joint Pre-Trial Report, D.E. 187 at
5−6. In “deciding whether to exercise [his] veto power,” the Governor asked the Florida
Supreme Court to address the Tier 1 non-diminishment standard of the FDA as follows:
I seek this Court’s opinion on whether Article III, Section 20(a)
of the Florida Constitution requires the retention of a district in
northern Florida that connects the minority population in
Jacksonville with distant and distinct minority populations
(either in Leon and Gadsden Counties or outside of Orlando)
to ensure sufficient voting strength, even if not a majority, to
elect a candidate of their choice.
JX 0052 at 2.
The Florida Supreme Court declined to issue an opinion to inform the Governor’s
veto decision.

See Advisory Opinion to Governor, 333 So. 3d 1106 (Fla. 2022).

Specifically, it concluded that “the Governor’s request might necessitate fact-intensive
analysis” and that it could not conduct such an inquiry without “a functional analysis of

As a general matter, “cracking means dividing [voters] . . . among multiple districts so that they fall short
of a majority in each one.” Gill v. Whitford, 585 U.S. 48, 55 (2018) (citations omitted). See Voinovich v.
Quilter, 507 U.S. 146, 153–54 (1993) (explaining that “cracking” can support racial vote dilution claims).
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statistical evidence, such as the voting age of minority populations and election results.”
Id. at 1108.6
On February 14, 2022, Governor DeSantis produced and submitted a second map
(Map 94) for the Legislature’s consideration.

See PX 4527.

In keeping with its

gubernatorial predecessor, Map 94 divided Benchmark CD-5 into four districts and
eliminated the only Black-performing district in North Florida. See Tr. 96−97. While the
House Subcommittee on Congressional Redistricting deliberated, the Governor’s Office
took coordinated action.7
On February 18, 2022, Governor DeSantis solicited Robert D. Popper, a senior
attorney at Judicial Watch, to testify before the House subcommittee as to the Governor’s
legal objections.

See JX 0037.

Judicial Watch, according to Mr. Popper, is as a

“Washington D.C.-based public interest nonprofit dedicated to promoting transparency,
accountability, and integrity in government, politics, and the law.” JX 2236 at 1. The
effort, however, failed to consolidate support for the Governor’s views. According to the
plaintiffs and Mr. Kelly, the Legislature “was not impressed” with the arguments advanced
by Mr. Popper that day. See Tr. 105. Instead, both Republicans and Democrats alike were
openly hostile toward Mr. Popper after hearing his presentation. See Tr. 105−06. Notably,
as part of his testimony, Mr. Popper acknowledged that the Tier 1 non-diminishment
standard of the FDA could provide a compelling state interest to justify a race-based district
under the Equal Protection Clause of the Fourteenth Amendment. See JX 0037 at 92, 95,
101; Tr. 104.8

The Governor’s request to the Florida Supreme Court was unusual; the Florida Supreme Court had
previously declined a similar request in 1887. See JX 0052 at 3; Tr. 422; In re Exec. Commc’n, 23 Fla. 297,
298–99 (Fla. 1887). Though rare, the Governor’s request was not unprecedented. See Tr. 436; In re
Advisory Opinion to Governor, 81 So. 2d 782, 783–87 (Fla. 1955).
6

For the discussion by the House Subcommittee on Congressional Redistricting, see, e.g., JX 0037 and JX
0038.
7

Mr. Popper agreed that complying with the Florida Constitution “absolutely can be a compelling state
interest.” JX 0037 at 101. Mr. Popper also asserted, however, that Benchmark CD-5 was not narrowly
tailored. See JX 0037 at 101.
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On that same day, the Governor’s General Counsel, Ryan Newman, sent a legal
memorandum to the House Subcommittee on Congressional Redistricting. See JX 0056;
Tr. 106. This memorandum, Secretary Byrd conceded, was a direct response to the
Legislature’s ongoing efforts to preserve a Black-performing district in North Florida. See
Secretary’s Post-Trial Br., D.E. 217 at 46−47.
Mr. Newman argued in his memorandum that the proposed district resembling
Benchmark CD-5 was “[f]ar from compact” and did “not respect political subdivisions or
communities defined by actual shared interests.” JX 0056 at 2. According to Mr. Newman,
such legislative proposals existed “specifically to capture minority populations and to
combine them into one district.” JX 0056 at 3. To that end, Benchmark CD-5, and other
Black-performing districts resembling it in North Florida, amounted to racial gerrymanders
that were neither required by the FDA nor tolerated by the Equal Protection Clause of the
Fourteenth Amendment. See JX 0056.
After considering both Mr. Popper’s testimony and Mr. Newman’s memorandum,
an unpersuaded House Subcommittee on Congressional Redistricting passed, by a vote of
14 to 7, a congressional redistricting plan (Map 8011) that rejected the Governor’s legal
arguments by retaining a Black-performing district in North Florida. See DX97; Tr. 13,
113, 557. Like Benchmark CD-5, the proposed CD-3 of Map 8011 spanned East-West
from Jacksonville to Tallahassee along the Georgia border. See DX97.
The Florida House of Representatives, however, sought to compromise by
introducing an unprecedented two-map plan. For the first time in Florida history, the House
proposed a congressional redistricting package that featured both a primary map (Map
8019) and an alternative map (Map 8015). See Tr. 81, 392, 558.9
We reproduce each map below.

The two-map plan was first introduced by the House Redistricting Subcommittee on February 25, 2022.
See Tr. 74. At that time, the Subcommittee introduced Map 8017, a prior version of Map 8019. See Tr.
395. The Subcommittee introduced Map 8019, the primary map later adopted by the Legislature, on March
1, 2022. The parties did not raise any relevant distinctions between Maps 8017 and 8019, nor does there
appear to be any. See https://perma.cc/LJ9C-XWR7.
9

15

Map 801910

DX97 at 6 (containing screenshot of same).
Map 801511

DX98 at 3 (containing screenshot of same).
This two-map plan was an attempt by Florida legislators to comply with both the
FDA non-diminishment standard and the Governor’s stated objections as to the shape of
Benchmark CD-5. See Tr. 556−57. If the primary map was struck down, or rejected, the

10

https://perma.cc/5SN7-BACU.

11

https://perma.cc/C6NX-USZS.

16

alternative map would “take immediate effect.” See JX 0038 at 24; Tr. 556−57. Either
way, the House reasoned that this proposed compromise would deliver a legally compliant
map. See Tr. 557.
The primary map, Map 8019, introduced a new, more compact CD-5 configuration
and managed to preserve a Black-performing district in North Florida. See Tr. 119−22,
132−34. Unlike previous versions of the district, the proposed CD-5 in Map 8019 no longer
spanned hundreds of miles along the Georgia border and across eight counties in Florida.
See Tr. 122. Nor did it attempt to connect allegedly separate and distinct minority
population centers across Jacksonville and Tallahassee. See Tr. 122. Instead, the proposed
CD-5 in Map 8019 was “entirely located in Duval County” and centered around “a compact
African American community.” See Tr. 118, 124.12
In the words of Representative Leek, this new “Duval-only” configuration “was put
forward as a way to address the novel legal theory raised by the Governor, while still
protecting a Black minority seat in North Florida.” JX 0038 at 24; Tr. 556−57. Visually,
the proposed district was no longer “unusual,” “bizarre,” or “meandering.” JX 0052 at 4.
Nor did its shape feature “narrow” or “sprawling” appendages that “compresse[d]” and
“stretche[d] . . . solely to connect black voters . . . . ” JX 0052 at 4. On the contrary,
according to witnesses for Secretary Byrd, the proposed CD-5 was “a highly compact
district” with northern, western, and southern lines that coincided exactly with the political
boundaries of Duval County. See Tr. 118−19, 809. These visual refinements were reflected
statistically as well. As compared to Benchmark CD-5, for example, the proposed district
scored higher on every stipulated measure of compactness. See Joint Pre-Trial Report,
D.E. 187 at 3.13
The proposed Duval-only CD-5 in Map 8019 performed for Black voters in 9 out of 14 test elections as
compared to the Benchmark CD-5, which performed in all 14 test elections. See Tr. 156, 174, 187−88,
1011. Overall, the Duval-only CD-5 functionally performed for Black voters. See Tr. 156, 192, 670−71.
12

The parties stipulated to the compactness numbers and boundary analyses for all districts used for the
2016-2020 congressional elections (the Benchmark Map) as well as all the districts used in the Legislature’s
proposed two-map plan and those used for the 2022 congressional election (the Enacted Map) as available
on floridaredistricting.gov. See Joint Pre-Trial Report, D.E. 187 at 3; see infra notes 14−20 and
accompanying text.
13

17

The proposed Duval-only CD-5 in Map 8019 scored 0.52, 0.9, and 0.45 on the
Reock, Convex Hull, and Polsby-Popper measures, respectively.14

By comparison,

Benchmark CD-5 scored 0.12, 0.71, and 0.1.15 Meanwhile, the Enacted CD-4, which Mr.
Kelly identified as the relevant analogue in the Enacted Map, scored 0.38, 0.76, and 0.32,
which exceeded Benchmark CD-5, but failed to match or surpass the proposed Duval-only
CD-5 on every metric. See JX 0046 at 76.16 Each measure is scored against a minimum
compactness score of 0 and a maximum score of 1. See Stephen Ansolabehere & Maxwell
Palmer, A Two-Hundred Year Statistical History of the Gerrymander, 77 Ohio St. L.J. 741,
743−47 (2016).
The proposed Duval-only CD-5 in Map 8019 also scored well on various measures
of the stipulated boundary analysis. Mr. Kelly explained that the boundary analysis scores
reflect what percent of the district’s shape can be explained by political and geographical
boundaries.

See Tr. 218–19; see also In re Senate Joint Resolution of Legislative

Apportionment 100, 334 So. 3d 1282, 1288 (Fla. 2022) (explaining that an 82.7% boundary
analysis score “show[s] that the average district in the new [Florida] House plan follows
political and geographical boundaries along 82.7% of its perimeter”). As compared to
Benchmark CD-5, the proposed Duval-only CD-5 scored higher on city, county, and water
boundaries.17 Similarly, as compared to the Enacted CD-4, the proposed Duval-only CD5 scored higher on city, road, and rail boundaries.18 Enacted CD-4, on the other hand,
scored better than the proposed district on county, water, and non-geographic or political
boundaries.19

14

https://perma.cc/9K5Q-EUU3.

15

https://perma.cc/E83X-N8SX.

16

https://perma.cc/SV9Y-XMWK.

Compare Benchmark CD-5 (https://perma.cc/X8JF-3V2Y), with the proposed Duval-only CD-5 in Map
8019 (https://perma.cc/8YJ9-CMJU).
17

Compare the proposed Duval-only CD-5 in Map 8019 (https://perma.cc/8YJ9-CMJU), with the Enacted
CD-4 (https://perma.cc/EM6V-K9TV).
18

19

See id.

18

Despite these improvements, the proposed CD-5 in Map 8019 potentially introduced
a new set of issues. Visually, the neighboring CD-4 enveloped the Duval-only CD-5 on
three sides. See Tr. 809. According to Dr. Douglas Mark Johnson, an expert witness for
the Secretary, the proposed CD-4 created “almost a full Pac Man” shape around the Duvalonly CD-5. See Tr. 809−10, 832, 1008. Despite performing for Black voters in North
Florida, moreover, Map 8019 diminished the BVAP for CD-5 by 10.88%—from 46.20%
in the benchmark configuration to 35.32% in the Duval-only configuration. See DX98; JX
0070; Tr. 184−86.
As noted, the two-map package proposed by the House included a secondary,
alternative plan for the Governor’s consideration. This alternative plan, Map 8015,
preserved a Black-performing East-West CD-5 in North Florida—it performed for Black
voters in 14 out of 14 test elections—and improved the boundary lines of Benchmark CD5 in Duval County, Leon County, and Columbia County. See DX97; Tr. 156, 745. Dr.
Matthew Barreto, an expert witness for the plaintiffs, testified that the alternative CD-5
accounted for those “areas where there were jagged edges and kind of smoothed them out
to make improvements and follow other political boundaries.” Tr. 745. As a result, the
alternative CD-5 scored higher on several statistical boundary measures relative to the
existing benchmark district.20
Overall, Map 8015 retained a CD-5 configuration that resembled the benchmark
district in size and shape. See Tr. 660, 671. The alternative CD-5, for instance, spanned
from Jacksonville to “the south side of Tallahassee” and some believed it “appeared to try
As compared to Benchmark CD-5, the alternative CD-5 in Map 8015 scored higher on the Polsby-Popper
compactness measure. Compare Benchmark CD-5 (https://perma.cc/E83X-N8SX), with the alternative
CD-5 in Map 8015 (https://perma.cc/J2DE-PJ77). The alternative CD-5 also scored higher on several
boundary measures, including city, county, road, and water boundaries. Compare Benchmark CD-5
(https://perma.cc/X8JF-3V2Y), with the alternative CD-5 in Map 8015 (https://perma.cc/SNF3-FQTM).
As compared to the Enacted CD-4, the alternative CD-5 in Map 8015 scored lower on all three compactness
measures. Compare Enacted CD-4 (https://perma.cc/SV9Y-XMWK), with the alternative CD-5 in Map
8015 (https://perma.cc/J2DE-PJ77). The alternative CD-5, however, exceeded the Enacted CD-4 on city
and road boundaries, and matched the Enacted CD-4 on rail and non-geographic or political boundaries.
Compare Enacted CD-4 (https://perma.cc/EM6V-K9TV) with the alternative CD-5 in Map 8015
(https://perma.cc/SNF3-FQTM). The Enacted CD-4, on the other hand, scored higher than the alternative
CD-5 in Map 8015 on county and water boundaries. See id.
20

19

and find African American populations to connect together along the corridor.” Tr. 692,
745; see also Tr. 747−78. To that end, Governor DeSantis objected to the alternative CD5 on similar racial gerrymandering grounds. See Tr. 143.
In late February and early March of 2022, Governor DeSantis publicly declared his
opposition to the compromise plan then under consideration in the House. First, on
February 28, 2022, the Governor stated at a press conference: “I will veto maps that include
some of these unconstitutional districts, and that is a guarantee. They can take that to the
bank.” Tr. 398. Then, on March 4, 2022, the Governor reiterated his position online: “I
will veto the congressional reapportionment plan currently being debated by the House.
DOA [Dead on Arrival].” PX 2108 at 2.
The Republican-controlled Senate nonetheless passed the two-map plan proposed
by the House on the same day as the Governor’s latest opposition statement. The Senate,
like the House, reasoned that the compromise package complied with the FDA precisely
because both Map 8019 and Map 8015 preserved a Black-performing district in North
Florida. See JX 0040. Senator Rodrigues described the plan’s primary Map 8019 as
follows:
I do believe this is a constitutional map. . . . [W]e laid down the
county boundaries as our foundation. . . . [W]e made the
decision
as
a
body
to
prioritize
geographic
boundaries . . . . The map we’re asking you to vote yes on
today is . . . [b]etter than the benchmark, better than the map
that we passed in January. . . . This is a constitutional map. It is
a good map.
JX 0040 at 40−41, 44−45. The compromise plan passed the Senate by a vote of 24 to 15.
See JX 0040 at 45.
True to his word, Governor DeSantis vetoed the Legislature’s two-map redistricting
plan on March 29, 2022. See Joint Pre-Trial Report, D.E. 187 at 6. In his veto, the
Governor summarized his reasoning as follows:
As presented in both the primary and secondary maps enacted
by the Legislature, Congressional District 5 violates the Equal
Protection Clause of the Fourteenth Amendment to the U.S.
20

Constitution for the reasons set forth in the attached
memorandum. Although I understand the Legislature’s desire
to comply with the Florida Constitution, the Legislature is not
absolved of its duty to comply with the U.S. Constitution.
Where the U.S. and Florida Constitutions conflict, the U.S.
Constitution must prevail.
JX 0054.
Mr. Newman provided a fuller legal rationale in a memorandum attached to the veto.
See JX 0055.

In sum, Mr. Newman argued that both maps contained racially

gerrymandered districts in North Florida and that Map 8019 also violated the FDA’s nondiminishment provision. As to Map 8019, he explained that:
[The] configuration of the district is more compact [than
Benchmark CD-5] but has caused the adjacent district—
District 4—to take on a bizarre doughnut shape that almost
completely surrounds District 5. The reason for this unusual
configuration is the Legislature’s desire to maximize the black
voting age population in District 5. The Chair of the House
Redistricting Committee confirmed this motivation when he
explained that the new District 5 was drawn to “protect[] a
black minority seat in north Florida.” . . . Despite the
Legislature’s attempt to address the federal constitutional
concerns by drawing a more compact district, the constitutional
defect nevertheless persists.
JX 0055 at 3 (citation omitted). Similarly, for Map 8015 he stated:
In the secondary map . . . District 5 is a sprawling district that
stretches approximately 200 miles from East to West and cuts
across eight counties to connect a minority population in
Jacksonville with a separate and distinct minority population
in Leon and Gadsden Counties. The district is not compact,
does not conform to usual political or geographic boundaries,
and is bizarrely shaped to include minority populations in
western Leon County and Gadsden County while excluding
non-minority populations in eastern Leon County. Because this
version of District 5 plainly subordinates traditional districting
criteria to avoid diminishment of minority voting age
population, there is no question that race was “the predominant
factor motivating the legislature’s decision” to draw this
district.
JX 0055 at 2 (citation omitted).
21

Regarding Map 8019’s compliance with the FDA, Mr. Newman added:
[T]here is no good reason to believe that District 5, as presented
in [Map 8019], complies with the Florida Constitution’s nondiminishment requirement. The benchmark district contains a
black voting age population of 46.20%, whereas the black
voting age population of District 5 in the primary map is only
35.32%. . . . This nearly eleven percentage point drop is more
than slight, and while the House Redistricting Chair
represented that the black population of the district could still
elect a candidate of choice, . . . there appears to be little dispute
that the ability of the black population to elect such a candidate
had nevertheless been reduced . . . .
JX 0055 at 6 (citations omitted). Mr. Newman argued that though Map 8015 complied
with FDA, “[s]uch a district [the alternative CD-5] is not narrowly tailored to achieve the
compelling interest of protecting the voting rights of a minority community in a reasonably
cohesive geographic area” and thus the FDA’s non-diminishment provision is
unconstitutional as-applied. See JX 0055 at 7.
Following his veto, Governor DeSantis called for a special legislative session
scheduled to take place on April 19–22, 2022.21
On April 11, the leaders of the Florida Senate and House announced that the
“[l]egislative reapportionment staff is not drafting or producing a map for introduction
during the special session. We are awaiting a communication from the Governor’s Office
with a map that he will support.” PX 3040. The Governor, in turn, submitted his third, and
final, proposed map (Map C0109) on April 13, 2022. Map C0109 would become the
Enacted Map as depicted below.

The plaintiffs assert that the Governor timed the special legislative session so as to coincide with an April
18 deadline in this case for the plaintiffs to submit interim, proposed maps for the 2022 election cycle. See
Plaintiffs’ Post-Trial Br., D.E. 218 at 106. In the plaintiffs’ view, that timing created pressure for the
Legislature to acquiesce to the Governor’s demands or face a judicially-drawn map. See Plaintiffs’ PostTrial Br., D.E. 218 at 106. Secretary Byrd disputes that characterization. See Secretary’s Post-Trial Br.,
D.E. 217 at 54 n.7. We need not resolve this dispute.
21

22

The Enacted Map

DX93 at 1.
Map C0109 contained 18 districts drawn by the Governor, largely in the North and
Northeast, with the rest adopted from the Legislature’s previous proposals. See JX 0044;
PX 3014. Resembling the Governor’s previous two proposals, Map C0109 did not contain
a Black-performing district in North Florida and diminished the BVAP for the district at
issue (Enacted CD-4) by 14.54%—from 46.20% in the benchmark configuration
(Benchmark CD-5) to 31.66%. See JX 0048 at 34 (Representative Leek responding “no”
to a question as to whether CD-4 or CD-5 as proposed by the Governor, would perform for
Black candidates of choice).22
Following the Governor’s proposal, the Senate’s General Counsel, Daniel Nordby,
opined that the Governor cited to “valid legal precedents” in his veto memo and that “[i]n
the absence of controlling judicial precedent contrary to the Governor’s position on the
precise question presented . . . [M]ap [C0109] [was] worthy of careful consideration . . . . ”
PX 3014 at 3.

22

According to Mr. Kelly, CD-4 is the relevant analogue in Map C0109. See JX 0046 at 76.

23

On April 19, 2022, Mr. Kelly testified before the House Redistricting Subcommittee
and Senate Committee on Reapportionment in support of Map C0109. See JX 0044; JX
0046. Mr. Kelly stated that he was the sole map maker for the 18 Governor-drawn districts
in Map C0109 and that in performing the task he did not consider party identification. See
JX 0044 at 16. The only time Mr. Kelly considered party identification “was early in the
process” in an attempt to “draw a compact African American performing district in . . .
Northeast Florida to both try to comply with the U.S. Constitution and the State
Constitution . . . . ” JX 0044 at 18. Under the Governor’s reasoning (as explained in the
veto memo), he was not able to do so.23
Mr. Newman also provided legislative testimony, which largely reiterated the
Governor’s legal position as outlined in the veto memo. Of note, however, Mr. Newman
clarified that certain applications of the FDA could withstand strict scrutiny under the Equal
Protection Clause of the Fourteenth Amendment. See JX 0044 at 69.
The chairs of the Senate and House committees came around to the Governor’s
position. Senator Rodrigues considered Map C0109 a “compromise map” because it
included districts previously drawn by both legislative chambers and the Governor. See
JX 0045 at 83. He also considered Map C0109 to have a “constitutional basis.” See JX
0045 at 99. Similarly, Representative Leek said that the Legislature had “not ceded any
responsibility” to the Governor and acknowledged that Map C0109 is one of “innumerable
number of maps that can be [legally] compliant.” JX 0044 at 8; JX 0048 at 27.24
Map C0109, however, was not without its detractors.

Democratic legislators

derided the Governor’s actions as a hijacking of the redistricting process. See, e.g., JX
0047 at 13 (statement of Senator Shevrin Jones: “[W]hat I did not think was going to
happen was that we were going to acquiesce to the Governor and allow him to hijack this
process.”).

Senator Randolph Bracy called the Governor a “bully” and found it

“ridiculous” that the Senate could switch its position on the constitutionality of its two-

23

We will return to Mr. Kelly’s map drawing in more detail in summarizing his trial testimony.

24

The transcript reads “illegally,” but it is clear from context that the text should read “legally.”

24

map plan in a matter of three weeks. See JX 0047 at 6. Representative Kamia Brown
argued that the Governor’s “intent [was] to disenfranchise the same people that [the Equal
Protection Clause] was designed to protect.” JX 0050 at 21.
On April 21, 2022, the day the Legislature enacted Map C0109, Democratic
members of the House staged a peaceful protest on the House floor in response to the
Governor’s elimination of a Black-performing district in North Florida. See Tr. 570–71.
Some Republican legislators, however, maintained that the Legislature had done its job
properly. See, e.g., JX 0047 at 33 (statement of Senator Kelli Stargel: “I believe these maps
are constitutional . . . . I don’t think any of us who vote for them today are racist or
following the direct will of the Governor.”); JX 0050 at 70 (statement of Representative
Randy Fine: “We don’t do this because we are bullied. We do this because we think it is
right.”).
The Governor signed the Enacted Map into law on April 22, 2022. In the most
recent election cycle, none of the newly formed districts in North Florida elected Black
voters’ candidates of choice. See Tr. 423.

III.

THE WITNESSES AT TRIAL
A. The Plaintiffs’ Witnesses

1. James Kelly (called by both sides)
Mr. Kelly drew CD-3, CD-4, and CD-5 in the Enacted Map, while the Legislature
drew CD-2. See Tr. 930. He was called as a witness by both sides. See Tr. 930. We
summarize the entirety of his testimony here.
During the 2021-22 redistricting cycle, Mr. Kelly was the Governor’s Deputy Chief
of Staff. See Tr. 39. By the time this trial began, Mr. Kelly was the Governor’s acting
Chief of Staff. See Tr. 38. Mr. Kelly is highly experienced in Florida’s redistricting
process, having first participated in that process as a legislative aide in 2001. See Tr. 40.
During the 2012 cycle, Mr. Kelly served as the staff director for the House Redistricting
Committee, where he gained substantial experience in drawing maps for both chambers.

25

See Tr. 41.

Mr. Kelly displayed thorough knowledge of geographic and political

boundaries in Florida. See, e.g., Tr. 223.25
Though not a lawyer, Mr. Kelly articulated the same legal arguments that Mr.
Newman made in the Governor’s veto memo. See Tr. 41, 131. In Mr. Kelly’s own words,
“[t]he Florida Supreme Court got it wrong” when it determined in Apportionment VII that
Benchmark CD-5 was required under the FDA because it did not consider the Fourteenth
Amendment’s Equal Protection Clause. See Tr. 76–77; Apportionment VII, 172 So. 3d at
403–04. At the time of the Governor’s veto in 2022, however, no federal or state court had
taken or accepted the Governor’s view of the law. See Tr. 80.
Mr. Kelly disagreed that Florida voters are still affected by their historically unequal
access to the political process. See Tr. 112. And he also disagreed that communities of
interest are valid redistricting criteria under Florida law. See Tr. 242–43.
Mr. Kelly acknowledged that the Enacted Map—in contrast to the Legislature’s twomap proposal—eliminated a Black-performing district in North Florida. See Tr. 57, 71, 74,
83, 97. As to the Governor’s non-diminishment criticism of Map 8019—as set out in Mr.
Newman’s veto memo—Mr. Kelly agreed that the Enacted Map only worsened the nondiminishment problem under the FDA. See Tr. 148.
In terms of shape, Mr. Kelly explained that any congressional district centered in
Duval County would have to split the county because its population is larger than what
would be allowed under the Equal Protection Clause’s one-person, one-vote principle. See
Tr. 119–20. Mr. Kelly chose the St. John’s River as the dividing line between CD-4 and
CD-5 in Duval. This had the effect of splitting the Black community. See Tr. 178. Mr.
Kelly said that the river was a logical place to make that split. See Tr. 232. Mr. Kelly
agreed that Map 8019’s CD-5 would perform for Black voters 9 out of 14 times in test
elections. See Tr. 156.

Mr. Kelly confirmed that Florida Governors Bush and Scott did not propose their own maps during their
respective congressional redistricting cycles, 2002 and 2012. See Tr. 42. Mr. Kelly did point out, however,
that in 1955 Governor Collins vetoed a legislative map. See Tr. 250.
25

26

Mr. Kelly testified that there are two ways to measure “compactness”: visually and
mathematically. Visually, a map drawer asks whether an ordinary person would reasonably
conclude that the district is “easy on the eyes—squares, rectangles—circular; do they
represent sort of clear and obvious appeasing shapes?” See Tr. 210. Keeping counties
whole may serve as a proxy for compactness. See Tr. 211. Accounting for city lines, major
roadways, railways, and waterways is also relevant to compactness.

See Tr. 213.

Mathematically, one common method is to draw a “circle or convex shape around a district,
and then . . . [to] measure compactness as a ratio of the percentage of the actual filled-in
boundaries . . . . ” Tr. 211. The Enacted Map split fewer counties than the Legislature’s
two-map proposal. See Tr. 214–15.26
According to Mr. Kelly, the Enacted Map’s CD-24, depicted below, complied with
the U.S. Constitution even though it was drawn to avoid diminishment under the FDA. See
Tr. 168. In other words, the Legislature had a compelling state interest to comply with the
FDA in that instance. See Tr. 168. On this point, he distinguished the Duval-only district
in Map 8019 by arguing that CD-24 did not distort surrounding districts. See Tr. 168–69.
Mr. Kelly, moreover, testified that CD-24, unlike the proposed Duval-only CD-5 in Map
8019, followed city and county lines, did not diminish, and was not drawn for race-based
reasons. See Tr. 168−69.

26

Mr. Kelly did not testify about how compactness scores are measured.

27

Enacted Map CD-24

DX93 at 12. Similarly, Mr. Kelly took no issue with the length of Enacted CD-2 (as he did
with CD-5 in the Benchmark map and in Map 8015) because it adhered to rural county
lines. See Tr. 221.
In drawing the Enacted Map, Mr. Kelly only considered race initially in an attempt
to draw a compact district in North Florida with at least a 40% BVAP, using Benchmark
CD-5’s 46% BVAP as the reference point. See Tr. 161, 934. He chose 40% not because it
was a “sacrosanct line in the sand,” but because it was a “reasonable number” to merit a
true functional analysis. See Tr. 935. In accordance with Mr. Newman’s analysis, Mr.
Kelly thought that a “more than slight” reduction in BVAP would constitute diminishment
under the FDA. See Tr. 149. Mr. Kelly agreed, however, that BVAP alone is not a substitute
for a functional analysis. See Tr. 149. In the end, Mr. Kelly determined that “there was no

28

way to come close to the benchmark,” so he saw no need to perform a functional analysis,
and did not perform such an analysis. See Tr. 161, 918.
Once Mr. Kelly realized that he could not draw a district in North Florida that
“checked all the boxes,” he attempted to draw those districts without considering race at
all. See Tr. 171, 920. He said that he did not have the racial demographic data turned on
in his districting software when drawing those districts because he “couldn’t figure out how
to turn it on.” Tr. 233. It was only after he had drawn the North Florida districts that he
realized he had drawn four majority white districts. See Tr. 171. Mr. Kelly, however, “was
aware of the demographics.” Tr. 170. He simply “didn’t pay attention to what [he] was
creating for those districts when [he] was drawing the map.” Tr. 170.
2. House Leader Fentrice Driskell
House Leader Fentrice Driskell represents North Tampa and North Hillsborough
County in the Florida House of Representatives and currently serves that chamber as
Minority Leader for the Democratic Party. See Tr. 509. Representative Driskell was
selected to serve on the House Redistricting Committee in the most recent cycle and
testified at trial on the redistricting process at issue in this case. See Tr. 509, 512−13.27
Representative Driskell’s testimony began with a description of the early stages of
that process in September of 2021 and the Governor’s subsequent involvement in January
of 2022. Representative Driskell stated that at the outset the committee placed “great
emphasis” on the legal standards that the legislators would need to understand in order to
fulfill their duties. See Tr. 515. “The goal,” according to Representative Driskell, “was
to . . . draw maps that satisfied both the federal . . . standards and the legal precedent
following that, and . . . the Fair Districts Amendments and any legal precedent following
that . . .” Tr. 522. She understood that it was “possible to have multiple maps . . . [as] the
result of the different policy choices . . . [but] the one thing that would never be in question

On cross-examination, Representative Driskell conceded that she was “generally” a political opponent of
Governor DeSantis and that she had previously stated that the Governor had sown “hate and division”
during his time in office. See Tr. 604−05. Representative Driskell had personally spoken with the
Democratic National Redistricting Committee about redistricting during the latest cycle. See Tr. 596−97.
27

29

was whether or not [they] adhered to the federal and State standards . . . . ” Tr. 526.
According to Representative Driskell, the Governor’s initial involvement starting in
January of 2022 was something she had “never even contemplated, particularly because
the Florida Constitution says that it’s up to the [L]egislature to draw the maps.” Tr. 552.
Representative Driskell explained that the House Redistricting Committee “kept
moving in [its] process” at first, but that “the conversation then started to change and
evolve” after the Florida Supreme Court rejected the Governor’s request for an advisory
opinion. See Tr. 554. At that point, the committee began to consider whether to “thread
the needle to keep the Governor happy” by drawing “a map that was . . . a nod to the
Governor’s map” with respect to CD-5 in North Florida. See Tr. 554. In her own words,
Representative Driskell observed that “the [L]egislature itself, legislative leadership, was
starting to yield to the Governor somewhat” at this point. Tr. 555.
Representative Driskell testified on the impact of the Governor’s decision to veto
the Legislature’s two-map compromise and call for a special session on March 29, 2022.
She noted that when the Governor followed through on his veto threat, the Legislature
entered “a period of uncertainty” in which “there weren’t any committee meetings. . . . no
opportunity for public feedback. . . . [or] calls from the committee chair or speaker . . . ”
Tr. 563. Representative Driskell stated that “[i]t was effectively total silence” and that
“[t]he mood had certainly shifted because it felt like . . . the Governor was in the driver[’s]
seat and like we were going to do whatever it is that he wanted us to do.” Tr. 563−64.
In this context, the outcome of the special session became immediately obvious to
Representative Driskell. “Once we got back for special session, it was the Governor’s
show. It was his people, his experts, his map drawers. There was really nothing for the
legislative committee staff to do. . . . they were trying to set up a legal challenge to
effectively undo the Fair Districts Amendments.” Tr. 567.

Representative Driskell

concluded by stating that the Governor had “effectively use[d] this process to make new
law” and “got exactly what he wanted.” Tr. 568, 573. In her own words, the congressional
redistricting cycle had “started out as a legitimate process,” but ended as “a
farce . . . designed to give the Governor what he wanted.” Tr. 573−74.
30

3. Dr. Matthew Barreto
Dr. Barreto provided expert testimony for the plaintiffs as to mapping and
redistricting methods. See Tr. 636. He holds a Ph.D. from the University of California,
Irvine, and is a Professor of Political Science and Chicano Studies at UCLA. See Tr. 627.
He also served as the faculty director for the UCLA Latino Politics and Policy Institute and
The Voting Rights Project. See Tr. 631. Dr. Kassra Oskoii, a Professor of Political Science
and International Relations at the University of Delaware, helped Dr. Barreto prepare his
report in this case. See Tr. 636.
Dr. Barreto testified that BVAP alone is insufficient to determine whether a district
performs. See Tr. 650. He explained that “you also have to look at the rest of the voters in
that district, and you take the totality of all of the election results to determine whether or
not a district performs.” Tr. 649. Dr. Barreto compared, through a functional analysis, the
Enacted Map to the preexisting benchmark map (including Benchmark CD-5) and the
Legislature’s two-map proposal. Tr. 647. He concluded that the Benchmark Map and the
Legislature’s two-map proposal performed for Black voters in North Florida, while the
Enacted Map did not. See Tr. 647–53. Part of the reason the Enacted Map did not perform,
according to Dr. Barreto, was because it split the Black community in Jacksonville into two
different districts. See Tr. 704. Dr. Barreto found that Black voters in North Florida voted
as a cohesive voting bloc, and that white voters bloc-vote against the Black-preferred
candidate. See Tr. 650, 655. Dr. Barreto also testified that Black voters constitute a
community of interest in North Florida due to lower household incomes, higher poverty
rates, and lower educational attainment. See Tr. 656−57. Dr. Barreto explained that
communities of interest are commonly considered in redistricting. See Tr. 658.
According to Dr. Barreto, the Governor’s objections to Map 8019 were contradicted
by his lack of objection to state-level maps. For instance, as to the Governor’s contention
that Map 8019 no longer performed for Black voters, Dr. Barreto pointed out that four state
districts fell below 35% BVAP and were nonetheless listed as “FDA-compliant by the State
of Florida.” Tr. 679. In response to the Governor’s objection that CD-5 in Map 8019
distorted CD-4 and was enveloped by CD-4 on three sides, Dr. Barreto pointed to a nearly
31

identical situation in the state-level maps—Senate Districts 4 and 5, see Tr. 689, which are
depicted below. Dr. Barreto testified that the Governor could have objected to the statelevel maps but chose not to. See Tr. 686.
Senate Map 805828

4. Dr. J. Morgan Kousser
Dr. J. Morgan Kousser is a Ph.D. historian and political scientist whose research
focuses on election law, Southern history, political science, race relations, social scientific
history, and legal history. See Tr. 328. Dr. Kousser has testified before the House Judiciary
Committee twice on voting rights legislation and testified or consulted in over sixty voting
rights cases, including several in Florida. See Tr. 329−30. He provided expert testimony
with respect to Florida’s history of voting rights and racial discrimination. See Tr. 330.
To prepare for this case, Dr. Kousser consulted numerous categories of evidence,
including legislative hearings and floor debates, court cases, press conferences, newspaper
articles, demographic reports, and scholarly materials on redistricting in Florida and the
history of discrimination in Florida. See Tr. 332−33. He did not conduct independent
research at the Florida Archives or the Bob Graham Center. See Tr. 437. He also examined
the testimony of the opposing expert witness in the case, Dr. Mark Edwards Owens. See

28

https://perma.cc/ZU9Z-899M.

32

Tr. 333. Finally, Dr. Kousser also prepared and submitted a report for this case, which,
among other things, applied the Arlington Heights factors to the case at hand. See Tr. 333.29
Dr. Kousser began his testimony by discussing the historical background factor of
the Arlington Heights analysis. According to Dr. Kousser, “Florida has used election law
from the beginning of the time that Black people could vote . . . to heighten the
discrimination against Blacks.” Tr. 335. He asserted that Florida has used redistricting, in
particular, “as a disenfranchising device or a device to diminish Black political influence
from the very beginning.” Tr. 335. Dr. Kousser also identified the counties of Benchmark
CD-5 as comprising “the Slave Belt” or “Plantation Belt” of antebellum Florida, where
there is “a long tradition of Black people . . . being discriminated against.” Tr. 336; see PX
4558. The 1868 Florida Constitution, for example, contained a provision that awarded
white-majority counties disproportionate legislative power. See Tr. 337. As a result,
“Black males could vote, but . . . even if they voted, they didn’t have the opportunity to
elect candidates of their choice in nearly the proportions of the[ir] population . . . . ” Tr.
337.
Dr. Kousser discussed other discriminatory measures aimed at Black voters in
Florida throughout the 19th and 20th centuries as well, including annual registration

Dr. Owens, Secretary Byrd’s opposing expert witness, did not challenge any facts cited in Dr. Kousser’s
report. See Tr. 334, 874.
29

33

certificates,30 Eight Box Laws,31 poll taxes,32 secret ballots,33 all-white primaries,34 at-large
elections,35 and voter roll purges.36 This racial animus was not limited to legislative action
either. All too often, opposition to Black voters in Florida also manifested itself through
brutal acts of violence that targeted those who dared vote or register others in the
community. See Tr. 341, 343−45.37 Together, these “overwhelmingly discriminatory
actions” worked in unison to disenfranchise Black voters, according to Dr. Kousser. See

Annual registration certificates operated as voter ID laws in the late 19th century and narrowed ballot
access for the Black population by forcing “small farmers, farm workers, [and] sharecroppers . . . to come
into town [to] get registered annually” and requiring them to store the issued certificates until it was time
to vote in an election. See Tr. 341.
30

Prior to 1889, Florida voters could endorse their candidate of choice “for Governor, Secretary of State,
State Senator—whoever happened to be on the ballot”— by depositing a single ballot. See Tr. 341. The
Eight Box Law changed that by requiring that a different “ballot for [each] office had to be put in that
particular election box, and [since] . . . election officials were not required by the law to tell any voter which
box to put the ballot in. . . . [i]t worked as a literacy test.” Tr. 342.
31

In 1889, Florida began utilizing the poll tax as a suffrage requirement. See Tr. 342. Together, the Eight
Box Law and the poll tax “greatly reduced the [Black] turnout in the 1892 elections and thereafter.” Tr.
342.
32

The secret ballot law required voters to mark a printed ballot inside a voting booth without outside help.
See Tr. 343. This law targeted those who “were barred from learning to read and write during slavery” and
“acted as a literacy test” on election day. See Tr. 342.
33

Dr. Kousser testified “[t]he Democratic party after 1892 was completely dominant in Florida, so if you
wanted to have real power, the real power was all in the Democratic primary. That was where your vote
counted. And there was [an] absolute bar on Blacks voting in the Democratic primary until after Smith v.
Allwright” was decided in 1944. See Tr. 344; See Smith v. Allwright, 321 U.S. 649 (1944).
34

Almost immediately after all-white primaries were repealed, the Florida Legislature implemented at-large
elections statewide for school boards. See Tr. 346. “An at-large election is discriminatory against minority
voters if there is racially polarized voting, because if there is a majority of the controlling
population . . . then no Blacks or other members of minority groups . . . can be elected. They can’t get
enough crossover votes to be elected.” Tr. 346.
35

According to Dr. Kousser, there “were repeated purging of the rolls. . . . often stopped by legal action,
either in the courts or by the Department of Justice” at the turn of the 21st century. See Tr. 354. For
example, there were “major purges” in 2000, 2004, and 2012, “which disproportionately affected
minorities—sometimes Blacks, always minorities.” Tr. 354.
36

Black and white Republicans were murdered in North Florida throughout the late 19th century and Black
voters residing in Florida during the Jim Crow era would experience election violence well into the mid20th century. See Tr. 343. Dr. Kousser offered two distinct examples: the 1920 Ocoee riots in which white
residents attacked the local Black population in response to a voter registration drive, and the 1951
assassination of Harry T. Moore, president of the Florida chapter of the NAACP, for his efforts to register
Black residents in the state. See Tr. 344−45.
37

34

Tr. 356. As a result of these tactics, Florida did not elect a single Black congressional
candidate from 1877 to 1993. See Tr. 356. Florida similarly failed to elect a single Black
candidate to the State Legislature for nearly a century. See Tr. 356.
These unconstitutional tactics were confronted by Congress and the U.S. Supreme
Court, respectively, in the Voting Rights Act of 1965 and Thornburg v. Gingles, 478 U.S.
30 (1986). “The legal environment,” Dr. Kousser testified, “changed such that it made it
possible for Blacks to have a stronger bargaining position” and, in 1992, Black interest
groups finally managed “to bargain with the Democratic party and the Republican party to
try to get seats particularly in Congress, but also in the State [L]egislature.” Tr. 354−55.
As it relates to North Florida, this negotiation led to the formation of a Congressional
District 3 the following year, “which had enough Black voters in it so
that . . . with . . . some crossover voting . . . they had . . . enough . . . to elect candidates of
their choice.” Tr. 357.
In 1993, the North-South CD-3, which spanned from Jacksonville to Orlando,
enabled a Black candidate to win a congressional district in Florida for the first time in
more than a century. See

358. This district would change in shape and composition

with every redistricting cycle from 1993 to 2016. See Tr. 357−58.38
But despite these changes, CD-3 would remain an “effective minority district[ ]”
through the years—allowing Black voters to elect a candidate of their choice despite never
exceeding a BVAP of 50%. See Tr. 358. The most significant change came in 2016 when
the Florida Supreme Court “ruled that the North-South orientation of the Congressional
District

3 . . . had

allowed

for

the

packing

of

Blacks

into

that

district

and . . . diminish[ed] . . . Black influence in the surrounding areas.” Tr. 357. To address
this issue, the Florida Supreme Court redrew CD-3 itself that year—replacing the existing
North-South district with the East-West Benchmark CD-5. See Tr. 357.

For map evolution, see PX 4557 (CD-3 from 1992 to 1996); PX 7230 (CD-3 from 1996 to 2002); PX
5043 (CD-3 from 2002 to 2012); PX 5044 (CD-5 from 2012 to 2016); PX 7199 (CD-5 from 2016 to 2022).
38

35

As part of his testimony on Florida’s electoral history, Dr. Kousser also discussed
the enactment of the FDA, which among other things was designed to prevent the dilution
of minority voting power in Black-performing districts. See Tr. 359. According to Dr.
Kousser, the FDA was passed in 2010 by voter referendum despite opposition from thenGovernor Rick Scott: “[T]he Republican leadership opposed the FDA in its initial attempts
to qualify in its passage and post-passage, but the voters, regardless of political party,
overwhelmingly backed it” with “more than 62 percent of the vote.” Tr. 360. The FDA,
Dr. Kousser explained, was “an additional guarantee for Black representation in addition
to what was offered by the [VRA’s] Section 2 and Section 5.” Tr. 361. The effort to
undermine the FDA and “to diminish the overall influence of Black voters,” in Dr.
Kousser’s words, was “a continuation of the discrimination that had occurred in the past”
and informed his perspective on the challenged action in this case. See Tr. 365−66.
Turning to the other Arlington Heights factors, and the most recent redistricting
cycle, Dr. Kousser testified that, by late 2021, legislators “had learned their lessons” and
were seeking to comply with the law. See Tr. 369. “They wanted to abide by what the
Florida Supreme Court had said,” and follow, among other things, the “particular formula
or methodology for determining whether a minority [was] effective or preserved . . . . ” Tr.
369−70. This formula required legislators to account for any potential diminishment by
examining factors that went beyond the BVAP within a given district. See Tr. 371, 374.
This process, according to Dr. Kousser, “was moving quite quickly” but “was brought to a
halt, or at least . . . slowed down, by the Governor’s action of submitting a plan in midJanuary. . . . indicat[ing] he was going to veto . . . and eventually propos[ing] a third
iteration of his plan for a special session” in late March of 2022. See Tr. 375−76.
Based on his analysis of Florida history, Dr. Kousser concluded that the events of
the 2021-22 redistricting cycle, including the extent of the Governor’s intervention, were

36

“extraordinary” compared to prior cycles, and its impact on Black voters were both
“foreseen” and “foreseeable.” See Tr. 420−21, 423−24.39
5. Charlie Clark
Charlie Clark, a Black man and one of the plaintiffs, testified that he resides in
Enacted CD-2, and provided his home address. See Tr. 258. Before that, he lived in
Benchmark CD-5. See Tr. 258. Mr. Clark is a registered Democrat and regularly votes in
Florida elections. He spoke fondly of his former representative, Democratic Congressman
Al Lawson of Benchmark CD-5.

See Tr. 265. Mr. Clark greatly appreciated how

responsive Congressman Lawson was to the needs of the community, giving as an example
his helping rural residents of Tallahassee regain power after a hurricane. See Tr. 265–66.
Mr. Clark and Congressman Lawson also attend the same church. See Tr. 265.
Under the Enacted Map, Mr. Clark’s representative is now Republican Congressman
Neal Dunn. Congressman Dunn was not Mr. Clark’s candidate of choice—Congressman
Lawson was. See Tr. 265. In his view, Congressman Dunn is not focused on issues that
impact the Black community. See Tr. 268.
Mr. Clark has resided in Tallahassee since 1982. See Tr. 257. He worked for 32
years in the Florida Department of Agriculture and Consumer Services, where he was the
first Black person to head the Department’s Pesticide Registration Program. Born in
Louisiana in 1951, Mr. Clark grew up in the “Jim Crow South.” See Tr. 257–58. He
described his lived experience, from the age of three until leaving to college, as taking
place in a “totally Black society . . . segregated by race and by geograph[y].” See Tr. 257.
He can trace his familial roots to Haitian slaves sold in Statesboro, Georgia, to a plantation
owner by the name of Clarke in Alexandria, Louisiana. See Tr. 268. His family members
call themselves “the I-10 people” because they all live along I-10 between Texas and
Florida. See Tr. 257.

On cross-examination, Dr. Kousser testified that he knew Governor Collins had “lobbied to get maps that
were more fairly apportioned” and that he vetoed apportionment maps. See Tr. 434. Dr. Kousser also said
that he was aware of previous special sessions calling for reapportionment throughout the mid-20th century
in Florida. See Tr. 436.
39

37

Mr. Clark is a member of various civic organizations, including the NAACP in
Tallahassee, and is heavily involved in the St. Michael and All Angels Episcopal Church—
also in Tallahassee. See Tr. 259. Mr. Clark explained that the Episcopal Church is divided
into districts within each state and that he is in the Diocese of North Florida. See Tr. 259.
This diocese extends from Jacksonville to Quincy (just northwest of Tallahassee) and south
to Gainesville, with its headquarters in Jacksonville. See Tr. 259. Mr. Clark travels to
Jacksonville about seven times a year for church-related matters. See Tr. 261−62. In his
40 years living in North Florida, Mr. Clark has seen large pockets of poverty among Black
constituents. See Tr. 262–63.
Mr. Clark said he voted for the FDA because he wanted to give Black voters a fair
shot at electing a candidate of their liking. See Tr. 261. During the 2012 redistricting
cycle, he found it “refreshing” that he could provide public input on the process. See Tr.
264. In contrast, under the 2022 redistricting cycle, Mr. Clark expressed his frustration at
how the “Governor of Florida hijacked the whole process and kind of bent the legislators
to their knees until they basically capitulated and did what he wanted them to do in terms
of redrawing the map of this district.” See Tr. 264. He was unaware of any public meetings
held for the 2022 redistricting cycle. See Tr. 279.
Secretary Byrd sought to discredit Mr. Clark by pointing out that his voter
identification card was not in evidence and that he could not remember the name of his
state representatives. See Secretary’s Post-Trial Br., D.E. 217 at 8–9; Tr. 272–73. The
Secretary also argued that Mr. Clark’s close ties to former Congressman Lawson cut against
his credibility because he has a special interest in seeing him win a future election. See
Secretary’s Post-Trial Br., D.E. 217 at 8. We do not find the Secretary’s arguments
persuasive. We instead credit Mr. Clark’s testimony and conclude—as explained later—
that he has Article III standing.
6. Dorothy Inman-Johnson
Dorothy Inman-Johnson, a Black woman and one of the plaintiffs, testified that she
resides in the part of Tallahassee that falls into enacted CD-2 and the old benchmark version
of that same district. See Tr. 302. She has been a member of the Florida NAACP for four
38

decades and joined Common Cause several years ago. See Tr. 302. Much like Mr. Clark,
Ms. Inman-Johnson is a registered Democrat whose candidate of choice in the 2022
election cycle was Congressman Lawson. See Tr. 309–10, 318. And, like Mr. Clark, she
has found Congressman Dunn unresponsive to her calls. See Tr. 314. Ms. Inman-Johnson
does not believe Congressman Dunn is a “good representative.” Tr. 314. She was not
aware of any opportunity to provide public feedback during the 2022 redistricting cycle.
See Tr. 307.
Ms. Inman-Johnson moved to Tallahassee in 1971 and has been at her particular
address since 1990. See Tr. 302, 325. Born into a racially segregated Birmingham in
Alabama, she described her upbringing as filled with “racial overtones with fire hoses [and]
dogs” because she “was one of the teenage protesters in the civil rights movement.” Tr.
301. In fact, her mother would organize carpools in Birmingham. See Tr. 302. Ms. InmanJohnson was a public-school teacher in Leon and Gadsden counties for over 25 years. See
Tr. 303. In the 1980s, she was the first ever Black woman elected to the Tallahassee City
Commission, a position she is running for again. See Tr. 303–04.
Secretary Byrd attempted to discredit Ms. Inman-Johnson by introducing previous
statements she had made on social media criticizing Governor DeSantis. She called the
Governor “a mix of Hitler and Putin” and that he is “a straight-up dictator” for “dismantling
our constitutional rights to suit his political agenda.” Tr. 323–25. Though reflecting Ms.
Inman-Johnson’s dislike for the Governor, those statements do not lead us to disbelieve her
testimony, which was essentially limited to establishing standing. We find Ms. InmanJohnson’s testimony credible and conclude—as explained later—that she has Article III
standing.
7. Amy Keith (Common Cause)
Amy Keith is the Program Director for Common Cause Florida and appeared on
behalf on the organization at trial. See Tr. 490. Ms. Keith testified that “Common Cause
is a nonprofit, nonpartisan organization dedicated to upholding the core values of American
democracy” and “work[ing] to create open, accountable government . . . and . . . to make
sure that every eligible voter is able to have . . . their vote counted . . . . ” Tr. 491.
39

According to Ms. Keith, Common Cause Florida has around 93,000 members
throughout Florida with at least one member in the enacted CDs 2, 3, 4, and 5. See Tr.
492−93. Ms. Keith personally oversaw the organization’s effort to contact these members,
testifying that she and others “took a list of [the] most committed and engaged
members. . . . looked at the ZIP codes. . . . that were wholly contained within the different
congressional districts, and . . . contacted them to confirm their residence” and voter
registration. See Tr. 493. This process occurred in July of 2023 and was completed over
several weeks. See Tr. 497.
Secretary Byrd attempted to discredit Common Cause Florida at trial by arguing
that Ms. Keith had not produced the compiled membership list and could not confirm how
long each undisclosed member had lived in CD-2, CD-3, CD-4, and CD-5, or whether they
intended to vote in the 2024 election. See Tr. 498−99; see also Secretary’s Post-Trial Br.,
D.E. 217 at 9−10. We find the Secretary’s arguments unpersuasive.
Before trial, Ms. Keith declared under penalty of perjury that due to “privacy
concerns, and the risk of retaliation,” Common Cause “keeps its membership list and
membership information confidential.” D.E. 166-8 at 2–3; Tr. 496. She further declared
that if this Court was “unsatisfied with this affirmation,” Common Cause would “endeavor
to obtain the permission of those members” and would reveal their names and addresses
“subject to a protective order limiting that information to attorney’s eyes only.” D.E. 1668 at 3.
At trial, Ms. Keith testified that she had personally re-confirmed the residence and
voter registration status of each member in the aforementioned congressional districts in
the week prior to trial. See Tr. 499. She further testified that while she could not “speak
for any single individual’s . . . ability or willingness to vote,” she had “checked the public
voter rolls” to confirm their status and believed these individuals were “committed to the
democratic process and participation.” Tr. 499. We find Ms. Keith’s testimony credible
with respect to standing.

40

8. Cynthia Slater (Florida NAACP)
Cynthia Slater is a longtime member of the Florida State Conference of the NAACP
and currently serves as the organization’s lead for Civic Engagement and as the president
of the organization’s Daytona Beach branch. See Tr. 615–16. She appeared on behalf of
the Florida NAACP at trial. Tr. 615. Ms. Slater testified that “[t]he mission of the NAACP
is to protect the rights of African Americans and minorities through the democratic
process.” Tr. 616.
According to Ms. Slater, the Florida NAACP has about 12,000 members across the
state, including North Florida. See Tr. 617. In July of 2023, Ms. Slater personally reviewed
“a list compiled by the NAACP of four members who live in Congressional Districts 2, 3,
4, and 5.” Tr. 618. She testified that the compiled list contained the names and addresses
of the members and that she personally knew three out of the four individuals as residents
of North Florida and members of the NAACP. See Tr. 618−619. Ms. Slater further testified
that she had taken additional steps to confirm the accuracy of the list and could personally
confirm that each individual had been a resident of their respective congressional district
as well as a member of the NAACP for at least ten years. See Tr. 620, 623−24.
Secretary Byrd attempted to discredit the Florida NAACP at trial by indicating that
Ms. Slater had not created or produced the compiled membership list and could not credibly
represent that each undisclosed member would vote in the 2024 election. See Tr. 623−24;
see also Secretary’s Post-Trial Br., D.E. 217 at 10−11. We find the Secretary’s arguments
unpersuasive.
At trial, Ms. Slater testified that the NAACP did not disclose its membership lists
publicly due to a “history of violence and threats.” Tr. 621. Ms. Slater stated that she had
personally confirmed the compiled list by cross-referencing the provided ZIP code of each
member with their respective congressional district as well as with the Florida Supervisor
of Election voter rolls. See Tr. 626. In her own words, Ms. Slater “confirmed their address,
their congressional district and . . . if they were active voter[s]” based on their participation
“in the last couple of elections.” Tr. 626. In addition, although Ms. Slater is not a resident
of North Florida, she testified that she personally knew three of the four individuals
41

residing in the aforementioned congressional districts “because of the leadership role that
they serve . . . within the Florida State Conference.” Tr. 619, 624. We find Ms. Slater’s
testimony credible as to standing.
B. The Secretary’s Witnesses
1. Dr. Douglas Mark Johnson
Dr. Douglas Mark Johnson is the president of the National Demographics
Corporation, which offers various demographic services to local governments, ranging
from building databases and drafting maps to planning hearings and leading discussions in
community outreach meetings. See Tr. 785−86. Dr. Johnson has a bachelor’s degree in
government from Claremont McKenna College, an MBA from UCLA, and a Ph.D. in
political science from Claremont Graduate University. See Tr. 784−85. Dr. Johnson
provided expert testimony with respect to mapmaking and demographics, and the
redistricting process in general. See Tr. 795.40
At trial, Dr. Johnson disagreed with two aspects of Dr. Barreto’s testimony. First,
Dr. Johnson disagreed with Dr. Barreto’s conclusion that the Enacted Map “cracked” the
Black voting population in Jacksonville. See Tr. 796. Second, Dr. Johnson rejected Dr.
Barreto’s observation that the Legislature’s proposed CD-5 in Map 8019 “closely
resembled” the enacted State Senate District 5 from the same redistricting cycle. See Tr.
796.41
Dr. Johnson took issue with Dr. Barreto’s “description of Jacksonville demographics
and his allegations that the enacted map cracked the Black voting strength in Jacksonville.”
Tr. 796. In particular, Dr. Johnson focused on the areas of Black population in Jacksonville
along the St. Johns River. See Tr. 821−23. He testified that “the Black voting strength on
the East side [of the river] . . . is significantly less Black than 50%” and thus concluded
that Dr. Barreto’s statement that the Enacted Map’s “district line split[ ] the Black

On cross-examination, Dr. Johnson admitted that other courts had excluded his testimony, in whole or in
part, all five times he had testified as an expert. See Tr. 813−15.
40

Dr. Johnson also criticized Dr. Barreto’s use of dot maps, but we do not find that discussion relevant for
purposes of our evaluation of the plaintiffs’ claims.
41

42

population in half” was “clearly wrong.” Tr. 822−23. Dr. Johnson, however, did not
address the concession by Mr. Kelly that he had knowingly split the Black community by
drawing the district line down the St. Johns River. See Tr. 177−78. Dr. Johnson, moreover,
conceded that he had not conducted a functional analysis to determine the impact of that
split on the Black population and did not dispute Dr. Barreto’s conclusion that Map 8019
performed for Black voters in Jacksonville, while the Enacted Map did not. See Tr. 824−25,
827.
Dr. Johnson also disagreed with Dr. Barreto’s “description of the Senate district in
Jacksonville, Senate District 5 with the [Map 8019] proposed congressional district in the
same area . . . as closely resembling each other.” Tr. 796. In Dr. Johnson’s opinion the two
districts did not “resemble each other at all.” Tr. 796. Yet when asked to compare the two
shapes by the Court, Dr. Johnson conceded that the two districts were “very similar” and
that any differences between them were “just a matter of degrees.” Tr. 832.
2. Dr. Mark Edwards Owens
Dr. Mark Edwards Owens is a professor of political science at the Citadel. See Tr.
851. He holds a bachelor’s degree in political science from the University of Florida and
a Ph.D. from the University of Georgia. See Tr. 854−55. He is also the co-director of the
Symposium on Southern Politics—a conference which brings political scientists and
historians together every two years to study elections and state politics in the South. See
Tr. 852. He has testified and provided expert reports in several federal court cases and
currently teaches courses on campaigns, elections, and Southern politics. See Tr. 855−56.
Dr. Owens provided expert testimony with respect to political history, racially polarized
voting, and the redistricting process generally. See Tr. 856.
Dr. Owens disagreed with several aspects of Dr. Kousser’s testimony. Namely, he
concluded that Dr. Kousser had overlooked “critical junctures” of reapportionment history
in Florida and omitted facts surrounding recent political developments and the latest
redistricting cycle. See Tr. 856−57. With respect to critical junctures, which he defined as
“major shifts in how we might define an institution or how an institution has governed

43

itself,” Dr. Owens provided testimony on three dates referenced by Dr. Kousser. See Tr.
857.
First, Dr. Owens identified the Voting Rights Act of 1964 as a critical juncture in the
state’s history and focused on the fact that Florida, in contrast to the rest of the southern
states, was not covered by Section 5 of the VRA. See Tr. 858. Contrary to Dr. Kousser’s
testimony, then, Dr. Owens concluded that this difference in VRA coverage indicated “an
absence of large-scale . . . discrimination” in Florida’s reapportionment history. See Tr.
858.
Second, Dr. Owens identified 1992 as a critical juncture for two reasons. Similar to
Dr. Kousser, he highlighted the creation of three Black-performing districts that year. See
Tr. 859. But he also pointed to the constitutional amendment passed that year, which
imposed eight-year term limits on Florida legislators and, as it relates to the case at hand,
prevents representatives from having “experience within redistricting from decade to
decade.” Tr. 859.
Third, Dr. Owens focused on 2011 to underscore that, after the passage of the FDA,
legislators could no longer utilize partisanship or communities of interest to draw maps.
See Tr. 860. In his words, under the FDA, legislators are “actually directed not to consider
those issues.” Tr. 860.
Dr. Owens also testified that Dr. Kousser had omitted certain facts surrounding
recent political developments and the latest redistricting cycle. In his opinion, Dr. Kousser
had selectively quoted members of the minority party “to frame and provide a narrative to
the redistricting process.” Tr. 860. Instead, Dr. Owens pointed to statements made by
Representative Randy Fine, which he believed established that legislators “knew what was
happening . . . and participated in that process” to “vote [for] the plan that [was] ultimately
enacted.”

Tr. 861.

Dr. Owens also opposed Dr. Kousser’s characterization of the

Governor’s veto decision as “extraordinary.” See Tr. 864. In response, he testified that
governors in five other states had vetoed congressional maps in this redistricting cycle and
that “the Governor did so in Florida in this case in the only opportunity that he had to
participate” in the process. See Tr. 863−65.
44

On cross-examination, Dr. Owens qualified several aspects of his testimony on
direct. Among other points, he admitted that he had never testified as an expert witness
before 2022; did not consider himself a historian; and did not “object to Dr. Kousser’s
account of the history and the events in Florida.” Tr. 873−74. When asked specifically,
Dr. Owens agreed that there was “a long-standing general history of racial discrimination
against minorities that [had] influenced Florida’s electoral process” and, in particular, that
“the Black population in Congressional District 5 has a lineal connection to the many
enslaved people brought there to work in the antebellum period.” Tr. 875, 889−90.
Regarding Dr. Kousser’s framing of the Legislature’s intent, Dr. Owens further
conceded that Representative Fine was the sole legislator from his research who had “stated
publicly that [he] agreed with the Governor’s novel legal theory.” Tr. 902. Similarly, as to
Dr. Kousser’s characterization of the vetoed compromise, Dr. Owens admitted that, even
as compared to other states, “Governor DeSantis’ veto was unique this cycle because it was
a veto based on the racial composition of voters in the proposed district.” Tr. 907−08.

IV.

STANDING

We first address Article III standing. Where at least one plaintiff has standing to
maintain the action, and to seek each form of relief, it is unnecessary to address the standing
of the other plaintiffs. See, e.g., Horne v. Flores, 557 U.S. 433, 446−47 (2009); Town of
Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017).
“[A] plaintiff may not invoke federal-court jurisdiction unless he can show a
personal stake in the outcome of the controversy.” Gill v. Whitford, 585 U.S. 48, 65 (2018)
(citation and internal quotation marks omitted). That is to say, the plaintiff must have
Article III standing. For this, the plaintiff must show he (1) suffered an “injury in fact” (2)
that is “fairly traceable to the challenged action of the defendant” and (3) is likely to be
“redressed by a favorable decision.” See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560−61 (1992) (citations and internal quotation marks omitted). Each element must be
supported “with the manner and degree of evidence required at the successive stages of the
litigation,” so at this stage the elements must be “supported adequately by the evidence
adduced at trial.” See id. at 561 (citation and internal quotation marks omitted).
45

The plaintiffs assert standing for two individuals, Mr. Clark and Ms. InmanJohnson, as well as for two organizations, Common Cause Florida and the Florida NAACP.
The Secretary disputes standing as to all of the plaintiffs. We conclude that Mr. Clark and
Common Cause have standing. Accordingly, we need not decide whether any of the other
plaintiffs do. See Town of Chester, 581 U.S. at 439 (“At least one plaintiff must have
standing to seek each form of relief requested in the complaint.”).
The plaintiffs have brought vote dilution claims under the Fourteenth and Fifteenth
Amendments. The “‘dilution of racial minority group voting strength may be caused’
either ‘by the dispersal of [minorities] into districts in which they constitute an ineffective
minority of voters or from the concentration of [minorities] into districts where they
constitute an excessive majority.’” Voinovich, 507 U.S. at 154 (citation omitted). In the
world of electoral law, the former is known as “cracking,” while the latter is known as
“packing.” See Gill, 585 U.S. at 55; Vieth v. Jubelirer, 541 U.S. 267, 286 n.7 (2004)
(plurality opinion).
Because the “plaintiffs’ alleged harm is the dilution of their votes, th[eir] injury is
district specific. . . . The boundaries of the district, and the composition of its voters,
determine whether and to what extent a particular voter is packed or cracked.” Gill, 585
U.S. at 49. A plaintiff is injured if the legislative district was “deliberately designed to
waste [his] vote[ ] in elections where [his] chosen candidates will win in landslides
(packing) or are destined to lose by closer margins (cracking).” Id. (citations and internal
quotation marks omitted); see also Baker v. Carr, 369 U.S. 186, 206 (1962) (“[V]oters who
allege facts showing disadvantage to themselves as individuals have standing to sue.”).
Mr. Clark credibly testified that he has lived in Tallahassee since 1982, that he is a
registered and active voter, that he intended to vote in future elections, that he was in the
former Benchmark CD-5, and that he is now in the Enacted CD-2. That is enough to
demonstrate his standing. And if the plaintiffs need to establish the standing of voters in
every possibly affected North Florida congressional district in the Enacted Map, Ms. Keith
credibly testified that Common Cause has members who are registered voters in Enacted
CD-2, CD-3, CD-4, and CD-5. That too is sufficient. See Friends of the Earth, Inc. v.
46

Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (“An
[organization] has standing to bring suit on behalf of its members when its members would
otherwise have standing to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit”).42

V.

LEGAL STANDARD FOR VOTE DILUTION CLAIMS

As a general matter, “a vote dilution claim alleges that the State has enacted a
particular voting scheme as a purposeful device ‘to minimize or cancel out the voting
potential of racial or ethnic minorities[.]’” Miller v. Johnson, 515 U.S. 900, 911 (1995)
(citation omitted). See also, e.g., Rogers v. Lodge, 458 U.S. 613, 617 (1982) (“The Court
has recognized . . . that multimember districts violate the Fourteenth Amendment if
‘conceived or operated as purposeful devices to further racial discrimination’ by
minimizing, cancelling out or diluting the voting strength of racial elements in the voting
population.”) (citation omitted); White v. Regester, 412 U.S. 755, 765 (1973) (“[W]e have
entertained claims that multimember districts are being used invidiously to cancel out or
minimize the voting strength of racial groups.”) (citation omitted).
A. Fourteenth and Fifteenth Amendments
The Supreme Court has held that vote dilution claims are cognizable under the
Fourteenth Amendment, but has left open whether they can also be brought under the
Fifteenth Amendment. Compare, e.g., Shaw, 509 U.S. at 641 (explaining that certain
“schemes violate the Fourteenth Amendment when they are adopted with a discriminatory
purpose and have the effect of diluting minority voting strength” in situations where
“members of a racial minority group vote as a cohesive unit”), with, e.g., Voinovich, 507
U.S. at 159 (“This Court has not decided whether the Fifteenth Amendment applies to votedilution claims[.]”). The “design of the [Fifteenth] Amendment is to reaffirm the equality
of races at the most basic level of the democratic process,” and it “prohibits all provisions
denying or abridging the voting franchise of any citizen or class of citizens on the basis of
42

If necessary, we also conclude that Ms. Inman-Johnson and the Florida NAACP have Article III standing.

47

race.” Rice v. Cayetano, 528 U.S. 495, 512 (2000). The majority of circuits that have
addressed the issue have concluded that vote dilution claims can be asserted under the
Fifteenth Amendment. See Lodge v. Buxton, 639 F.2d 1358, 1373 (5th Cir. 1981), aff’d
sub nom, Rogers v. Lodge, 458 U.S. 613 (1982); Washington v. Finlay, 664 F.2d 913, 919
(4th Cir. 1981); Perkins v. City of West Helena, 675 F.2d 201, 205−06 (8th Cir. 1982);
Lucas v. Townsend, 967 F.2d 549, 551 (11th Cir. 1992). See also Page v. Bartels, 248 F.3d
175, 192−94 (3d Cir. 2001) (concluding that Fifteenth Amendment vote dilution claims
were not frivolous or insubstantial). Some district courts, however, have disagreed. See,
e.g., Tigrett v. Cooper, 855 F. Supp. 2d 733, 748 (W.D. Tenn. 2012); Perez v. Texas, 2014
WL 12853571, at *2 (W.D. Tex. June 23, 2014) (three-judge court); Alabama State
Conference of the NAACP v. City of Pleasant Grove, 372 F. Supp. 3d. 1333, 1341−42 (N.D.
Ala. 2019).
We assume, without deciding, that vote dilution claims can also be brought under
the Fifteenth Amendment as the plaintiffs allege. In the plaintiffs’ own framing, a vote
dilution claim under the Fifteenth Amendment mirrors, and is congruent with, a vote
dilution claim under the Fourteenth Amendment. And in their view, both claims require
proof of discriminatory purpose and dilutive effect. See Plaintiffs’ Post-Trial Br., D.E. 218
at 101–02. So if the plaintiffs’ Fourteenth Amendment vote dilution claim fails, so too does
their Fifteenth Amendment vote dilution claim.
B. Discriminatory Purpose
As to discriminatory purpose, we must presume the good faith of the legislature.
See Abbott v. Perez, 585 U.S. 579, 603 (2018). Taking this presumption into account,
[a]n election practice violates . . . the Fourteenth and Fifteenth
Amendments if it is undertaken and maintained for a
discriminatory purpose. Under this intent-based approach,
“[r]acial discrimination need only be one purpose, and not even
a primary purpose, of an official act” for a violation to
occur. But discriminatory intent “implies more than intent as
volition or intent as awareness of consequences . . . . It implies
that the decisionmaker . . . selected or reaffirmed a particular
course of action at least in part because of, not merely in spite
of, its adverse effects upon an identifiable group.”
48

Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020) (some internal quotation marks and
citations omitted). Stated differently, “[d]iscriminatory purpose may be established by
proof that the [government] used race as a substantial or motivating factor in its . . .
practices. . . . [O]nce a discriminatory purpose is established, the burden shifts to [the
government] to prove that, at the time of the discriminatory act, the same decision would
have been made for a legitimate reason.” Burton v. City of Belle Glade, 178 F.3d 1175,
1189 (11th Cir. 1999).
In assessing the matter of discriminatory intent, “‘direct or indirect circumstantial
evidence, including the normal inferences to be drawn from the foreseeability of [the
government’s] actions’ may be considered.” Fusilier, 963 F.3d at 463 (citation omitted).
“We evaluate all available direct and circumstantial evidence of intent in determining
whether a discriminatory purpose was a motivating factor in a particular decision.” Burton,
178 F.3d at 1189. The Eleventh Circuit, for example, has explained that under the Supreme
Court’s decision in Arlington Heights
relevant evidentiary factors include substantial disparate
impact, a history of discriminatory official actions, procedural
and substantive departures from the norms generally followed
by the decision-maker, and the legislative and administrative
history of the decision. . . . [E]vidence of the historical
background of the decision is relevant to the issue of
discriminatory intent. . . . Indeed, all actions having
foreseeable and anticipated disparate impact are relevant
evidence to prove the ultimate fact, forbidden purpose.
Id. (citations and internal quotation marks omitted); see also Greater Birmingham
Ministries, 992 F.3d at 1332. Nevertheless, the presumption of good faith accorded to the
legislature is not changed by a finding of past discrimination. See Abbott, 585 U.S. at 603.
C. Dilutive Effect
Since 1982, vote dilution claims under Section 2 of the Voting Rights Act, 52 U.S.C.
10301, do not require a showing of discriminatory intent. See Gingles, 478 U.S. at 35−36.
Understandably, then, most plaintiffs asserting vote dilution claims in the last 40 years have
proceeded under Section 2 and have not invoked the Fourteenth or Fifteenth Amendments.

49

See generally Travis Crum, Reconstructing Racially Polarized Voting, 70 Duke L. J. 261,
282 (2020) (“Indeed, after Gingles, constitutional vote dilution claims are rare.”); Luke P.
McLoughlin, Section 2 of the Voting Rights Act and City of Boerne: The Continuity,
Proximity, and Trajectory of Vote-Dilution Standards, 31 Vermont L. Rev. 39, 42 (2006)
(“Doctrinally, statutory vote dilution has eclipsed the constitutional species.”). That means
that there is a dearth of Supreme Court authority on what is required to prove dilutive effect
with respect to congressional districts under the Fourteenth or Fifteenth Amendments. See
Cano v. Davis, 211 F. Supp. 2d 1208, 1248−49 (C.D. Cal. 2002) (three-judge court), summ.
aff’d, 537 U.S. 1100 (2003); Perez v. Abbott, 253 F. Supp. 3d 864, 942−44 (W.D. Tex.
2017) (three-judge court); Ga. State Conf. of the NAACP v. Georgia, 269 F. Supp. 3d 1266,
1277−81, 1278 n.7 (N.D. Ga. 2017) (three-judge court).
As we explain below, even assuming that Governor DeSantis acted with some
unlawful discriminatory motive in creating and proposing the redistricting map that was
ultimately enacted into law, the plaintiffs have not proven that the Florida Legislature had
a similar motive in adopting and passing that map. Because that failure to prove the
requisite intent is fatal to the plaintiffs’ vote dilution claims under the Fourteenth and
Fifteenth Amendments, we need not and do not address how dilutive effect can (or must)
be proven for constitutional vote dilution claims in this context.

VI.

LACK OF RATIFICATION BY THE LEGISLATURE

To prevail on their vote dilution claims, the plaintiffs must prove that race was a
motivating factor in the adoption and passage of the Enacted Map by the Florida
Legislature. See Arlington Heights, 429 U.S. at 265; Greater Birmingham Ministries, 992
F.3d at 1321. That is because it is the Legislature’s responsibility to draw maps for
congressional redistricting in Florida. See Fla. Const. art. III, §§ 7, 20.
We pause here to emphasize a critical detail that was sometimes confused or glossed
over in the plaintiffs’ case. There are two relevant state actors in this case—the Florida
Legislature, which passed the Enacted Map, and the Governor, who proposed, pushed for,
and signed the Enacted Map into law. It is not enough for the plaintiffs to show that the
Governor was motivated in part by racial animus, which we will assume without deciding
50

for purposes of our decision. Rather, they also must prove that the Florida Legislature itself
acted with some discriminatory purpose when adopting and passing the Enacted Map. See
Abbott, 585 U.S. at 608–09; Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th Cir.
2002). This they have not done.
Any racially discriminatory purpose on the Governor’s part—which, again, we
assume without deciding—cannot simply by virtue of his role in the legislative process be
imputed to the Florida Legislature. See Brnovich v. Democratic Nat’l Comm., 141 S. Ct.
2321, 2350 (2021) (“The ‘cat’s paw’ theory has no application to legislative bodies. The
theory rests on the agency relationship that exists between an employer and a supervisor,
but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or
proponents.”); cf. United States v. O’Brien, 391 U.S. 367, 384 (1968) (“What motivates
one legislator to make a speech about a statute is not necessarily what motivates scores of
others to enact it . . . . ”).
Our analysis begins, as it must, with a presumption that the Florida Legislature acted
properly and in good faith when passing the Enacted Map. See Abbott, 585 U.S. at 603
(“[I]n assessing the sufficiency of a challenge to a districting plan, . . . [the] good faith of
[the] state legislature must be presumed.”) (citation omitted); League of Women Voters of
Fla., Inc. v. Florida Sec’y of State, 32 F.4th 1363, 1373 (11th Cir. 2022) (“[W]hile we do
not require courts to incant magic words, it does not appear to us that the district court here
meaningfully accounted for the presumption at all.”). Courts must “exercise extraordinary
caution in adjudicating claims that a State has drawn district lines on the basis of race.”
Miller, 515 U.S. at 916. Such restraint is warranted for two reasons. First, reapportionment
is primarily a duty and responsibility constitutionally vested in the state government. See
Growe v. Emison, 507 U.S. 25, 34 (1993) (citing U.S. Const. art. I, § 2). Second, “[f]ederalcourt review of districting legislation represents a serious intrusion on th[at] most vital of
local functions.” Miller, 515 U.S. at 915. A “complex interplay of forces” impacts the
redistricting calculus and legislatures “must have discretion to exercise the political
judgment necessary to balance competing interests.” Id. at 915–16. Cf. Cooper, 581 U.S.

51

at 319 (stating, in a racial gerrymandering case, that the plaintiff’s burden to overcome the
good-faith presumption is a “demanding” one).
Discriminatory purpose may be proved through direct evidence of legislative
purpose, such as “[o]utright admissions of impermissible racial motivation.” See Hunt v.
Cromartie, 526 U.S. 541, 553 (1999). Or it may be inferred from the totality of the
circumstances surrounding a plan’s enactment, guided by the well-established Arlington
Heights factors. See Arlington Heights, 429 U.S. at 266–68. In the redistricting context,
the Arlington Heights factors include (1) the existence of a disproportionate racial impact,
including evidence of a consistent pattern of actions by the legislature disparately
impacting a particular group; (2) the historical background and context for the redistricting
plan and the “specific sequence of events” leading up to its adoption; (3) procedural and
substantive departures in the normal decision-making process; and (4) the legislative and
administrative history behind the plan, including contemporary views expressed by
lawmakers. See id. Other relevant considerations include (5) the foreseeability of any
disparate impact; (6) the knowledge of that impact; and (7) the availability of less
discriminatory alternatives. See Greater Birmingham Ministries, 992 F.3d at 1322.
Discriminatory purpose also may be established on the basis of ratification. See
Matthews, 294 F.3d at 1297. In the legislative context, proving a ratification theory of
discriminatory purpose generally requires evidence that (1) a legislature enacted a law with
the “purpose of effectuating the desires” of another person or group; (2) racially
discriminatory considerations were a motivating factor behind those desires; and (3) the
legislature was aware of the discriminatory motives and adopted those motives as its own.
See United States v. Yonkers Bd. of Ed., 837 F.2d 1181, 1225 (2d Cir. 1987) (citation
omitted); Matthews, 294 F.3d at 1297–98. Stated differently, the legislature “must ratify
not only the [desired legislative measure] itself, but also the unconstitutional basis for it.”
Matthews, 294 F.3d at 1297.
Here the plaintiffs freely concede there is no direct or circumstantial evidence of
racially discriminatory purpose on the part of any member of the Florida Legislature. See
Tr. 982 (counsel agreeing that the plaintiffs are “not accusing any legislator of racial
52

animus”). And they also concede that with respect to the alternative maps it initially passed
(Maps 8019 and 8015) that the Legislature did not act with discriminatory motives. See
Tr. 980. Rather, their position is that the Florida Legislature knowingly ratified the
Governor’s discriminatory purpose not by affirmatively “endorsing it,” see Tr. 981, but by
“capitulat[ing] to the Governor’s racially motivated demands” and “reluctant[ly]
acquiesc[ing]” in the Enacted Map. See Plaintiffs’ Post-Trial Br., D.E. 218 at 111. But
capitulation and acquiescence to a desired end, without more, do not constitute ratification
of a racially discriminatory motive under settled precedent.43
Ratification of another’s racially discriminatory motives requires a conscious,
deliberate choice by the decision-making body. See Gattis v. Brice, 136 F.3d 724, 727 (11th
Cir. 1998) (“A policymaker’s approval of an unconstitutional action can constitute
unconstitutional [government] policy only when the policymaker . . . . [is shown to have]
not only accepted [a] recommendation . . . but knew of and ratified the improper motives
behind [that] recommendation.”) (citation omitted). This may be shown with evidence that
the decision-makers themselves “agreed with” the discriminatory motives. See Thomas ex
rel. Thomas v. Roberts, 261 F.3d 1160, 1174 n.12 (11th Cir. 2001), judgment vacated sub
nom. Thomas v. Roberts, 536 U.S. 953 (2002), opinion reinstated, 323 F.3d 950 (11th Cir.
2003). Or it may be demonstrated with evidence that the decision-makers knowingly chose
a particular course of action for the purpose of giving effect to the discriminatory motives.
See Hallmark Dev., Inc. v. Fulton County, 466 F.3d 1276, 1284 (11th Cir. 2006) (quoting
Yonkers, 837 F.3d at 1225).44

Of course, municipal liability under 42 U.S.C. § 1983 may attach where “final policymakers have
acquiesced in a longstanding practice that constitutes the [municipality’s] standard operating procedure.”
Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016). But this is not a municipal policy case,
and in any event that theory of municipal liability is separate and distinct from ratification, and was not
argued by the plaintiffs here.
43

See also Thomas, 261 F.3d at 1174 n.12 (“[W]hen plaintiffs are relying not on a pattern of unconstitutional
conduct, but on a single incident, they must demonstrate that [final decisionmakers] had an opportunity to
review [a] subordinate’s decision and agreed with both the decision and the decision’s basis before a court
can hold the government liable on a ratification theory.”); Salvato v. Miley, 790 F.3d 1286, 1296 (11th Cir.
2015) (“Only when the authorized policymakers approve a subordinate’s [unconstitutionally motivated]
44

53

So, for example, in Yonkers—a case the plaintiffs rely on—the Second Circuit
concluded that elected city officials purposefully funneled subsidized housing projects to
existing minority areas for decades in order to “achiev[e] or preserv[e]” the racial housing
segregation demanded by constituents. See 837 F.2d at 1223–24. The Second Circuit also
separately found direct evidence of discriminatory purpose but held that, even assuming
there was no such evidence, the city’s knowing responsiveness to constituents’ racially
segregationist desires gave rise to an equal protection violation. See id. at 1224−26.
Similarly, in Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982), the Fourth
Circuit ruled that city officials withdrew from a multi-municipality housing authority and
blocked the construction of public housing in “direct response” to “racially inspired” public
opposition to the project. In both Yonkers and Clarkton, the elected officials’ deliberate
responsiveness to the racial biases of the community gave effect to those biases and, in and
of itself, established discriminatory purpose. See Yonkers, 837 F.2d at 1223−26; Clarkton,
682 F.2d at 1066−67.45
Other cases similarly illustrate the types of official action that fall short of the
evidentiary standard for ratification. In Matthews, the Eleventh Circuit held that a county
was not liable on a ratification theory when only one of a three-member majority of county
commissioners who voted to eliminate a public employee’s job had an unconstitutional
motive. See 294 F.3d at 1296–98. The fact that the other two members may have been
influenced by the improperly motivated member or might have been aware of his improper
decision and the basis for it have they ratified that decision.”) (citation and internal quotation marks
omitted).
The doctrinal basis for decisions like Yonkers and Clarkton is rooted in longstanding Supreme Court
precedent holding that “a governmental body may not escape liability under the Equal Protection Clause
merely because its discriminatory action was undertaken in response to the desires of a majority of its
citizens.” Yonkers, 837 F.2d at 1224; see also City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473
U.S. 432, 448 (1985) (“[T]he electorate as a whole, whether by referendum or otherwise, could not order
city action violative of the Equal Protection Clause, . . . and [public officials] may not avoid the strictures
of that Clause by deferring to the wishes or objections of some fraction of the body politic.”) (citations
omitted); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect.”); Lucas v. Forty-Fourth Gen. Assembly of Colo.,
377 U.S. 713, 736–37 (1964) (“A citizen’s constitutional rights can hardly be infringed simply because a
majority of the people choose that it be.”).
45

54

motives did not establish that the others actually ratified or endorsed those motives. See
id. at 1297–98; see also Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006)
(no ratification by nine-member city planning commission in denying a real estate
developer’s variance request where only one member had an unconstitutional motive and
two other members may have been “influenced” by the improperly motivated member but
“not a scintilla of evidence” showed a majority of the members “knew of and ratified” the
unconstitutional motive). More recently, in Saunders v. Town of Hull, 874 F.3d 324 (1st
Cir. 2017), a police officer sued a town and former police chief, alleging that he was passed
over for promotion in retaliation for protected speech disparaging the former chief, in
violation of the First Amendment. The decision-maker in Saunders was the town’s Board
of Selectmen, but it adopted the former chief’s recommendation, which the plaintiff alleged
was retaliatorily motivated, as evidenced by the former chief’s later statement to him that
“Town Hall has my back.” Id. at 328–29. The First Circuit held that the plaintiff’s own
suspicions and the former chief’s single, unsubstantiated statement did not establish that
the Board was “aware of—let alone expressly approved of—[the former chief’s purported
retaliatory] motive” when it declined to promote the plaintiff. See id. at 331.
The legal principles at work in these authorities are uncomplicated. A public and
collective decision-making body, like the Florida Legislature, is answerable only for its
own unconstitutional actions and motivations. The unlawful motivations of others—
whether constituents, the Governor, or even a single member of the body itself—do not
become those of the decision-making body as a whole unless it is shown that a majority of
the body’s members shared and purposefully adopted (i.e., ratified) the motivations. See
Campbell, 434 F.3d at 1313. A contrary rule would put public officials in an untenable
position:
Lawmakers’ support for legislation can come from a variety of
sources; one [official] may support a particular piece of
legislation for a blatantly unconstitutional reason, while
another may support the same legislation for perfectly
legitimate reasons. A well-intentioned lawmaker who votes for
the legislation—even when he votes in the knowledge that
others are voting for it for an unconstitutional reason and even
55

when his unconstitutionally motivated colleague influences his
vote—does not automatically ratify or endorse the
unconstitutional motive. If [a contrary rule applied], the wellintentioned lawmaker in this hypothetical would be forced
either to vote against his own view of what is best . . . or subject
[the government entity on whose behalf he is acting] to Section
1983 liability. We think the law compels no such outcome.
Matthews, 294 F.3d at 1298; see also Veasey v. Abbott, 830 F.3d 216, 234 n.17 (5th Cir.
2016) (“[S]peculation and conclusory accusations by opposing legislators are not an
appropriate foundation for a finding of purposeful discrimination.”). So it is here. The
conceded absence of any evidence that any member of the Florida Legislature, much less
a majority of its members, was actually motivated by racial discrimination in passing the
Enacted Map dooms the plaintiffs’ case for ratification. Indeed, even without the good
faith presumption, the evidentiary record establishes that the Florida Legislature acted with
the purpose of ensuring the 2022 redistricting cycle yielded congressional district plans
that complied with the United States and Florida Constitutions.
Examples abound. At the start of the redistricting process, the Chairs of the Senate
and House redistricting committees explicitly pledged their commitment to producing
constitutionally compliant congressional districts, including the preservation of a Blackperforming district in North Florida consistent with the FDA’s non-diminishment
provision. In the months that followed, the committees produced at least six different maps
purposefully tailored to that end. Each time, Governor DeSantis publicly excoriated the
committees’ plans as unconstitutional racial gerrymanders, dispatched his surrogates to
argue the purported legal case against them, and even, in an unprecedented move,
submitted two congressional redistricting maps of his own eliminating the only Blackperforming district in North Florida. And each time, the Legislature roundly rejected the
Governor’s objections and instead—three times over—one or both chambers passed
redistricting plans that did, in fact, preserve a Black-performing district in North Florida.
The Legislature’s final redistricting plan was an extraordinary two-map compromise
intended to reconcile the FDA’s non-diminishment standard with the Governor’s stated
constitutional objections to the prior proposed plans, and it passed in the face of immense
56

opposition and public veto threats from the Governor. These are not the actions of a
legislative body infected with racial animus. To the contrary, the Florida Legislature clearly
fought hard and enacted congressional districting maps that it believed were compliant with
the United States and Florida Constitutions, including the FDA’s non-diminishment
provision.
That said, there did come a time when the Legislature seemed to run out of steam.
The Governor vetoed its two-map redistricting plan and called for a special legislative
session. At that point, rather than produce yet another new map of its own, the Legislature
decided to just await a map from the Governor. The Governor’s third and final map
included some districts previously endorsed by the Legislature and others proposed only
by the Governor, and it again eliminated the only Black-performing district in North
Florida. This time the Legislature changed course and enacted the Governor’s map. Some
legislators viewed the Enacted Map as a compromise map that represented but one of
“innumerable” ways to achieve constitutionally compliant congressional districts. See JX
0048 at 27. Others condemned the Enacted Map and even peacefully protested against it
on the House floor. Significantly, though, not one legislator said or did anything to suggest,
much less support an inference, that any legislator voted for the Enacted Map because they
shared or intended to effectuate any racially discriminatory motive on the Governor’s part.
Consequently, whatever might be said about the Legislature’s decision to give up the fight
for preserving a Black-performing district in North Florida, it did not amount to ratification
of racial animus in violation of the Fourteenth and Fifteenth Amendments. There being no
evidence of discriminatory purpose on the part of the Florida Legislature, the plaintiffs’
vote dilution claims fail.

57

VII. CONCLUSION
The plaintiffs have not proven that the Legislature acted with race as a motivating
factor in passing the Enacted Map. Accordingly, the plaintiffs’ intentional vote dilution
claims fail under the Fourteenth and Fifteenth Amendments.
Final judgment will be entered by separate order.46
SO ORDERED on March 27, 2024.

We thank counsel for their thorough presentations and the professional manner in which they litigated
and tried this case.
46

58

JORDAN, Circuit Judge, Concurring.
The Court’s opinion assumes without deciding that Governor Ron DeSantis acted
with race as a motivating factor but concludes that the plaintiffs’ claims fail because the
record does not show that the Florida Legislature ratified the motivation attributed to the
Governor. I join the opinion in full but write separately to explain why the evidence
presented at trial convinces me that the Governor did, in fact, act with race as a motivating
factor.

I
As a general matter, “in the absence of clear evidence to the contrary, courts
presume that [public officials] have properly discharged their official duties.” United
States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926). I begin, therefore, with a
presumption that Governor DeSantis acted properly in drawing and submitting the Enacted
Map and eliminating a Black-performing congressional district in North Florida.
This presumption of good faith, however, is not boundless. “When there is a proof
that a discriminatory purpose has been a motivating factor in the decision, . . . judicial
deference is no longer justified.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 265–66 (1977).
Determining the motivation of a large collective body is a difficult undertaking. See
Hunter v. Underwood, 471 U.S. 222, 228 (1985) (“When we move from an examination
of a board of county commissioners such as was involved in [Rogers v. Lodge, 458 U.S.
613 (1982)] to a body the size of the Alabama Constitutional Convention of 1901, the
difficulties in determining the actual motivations of the various legislators that produced a
given decision increase.”); United States v. O’Brien, 391 U.S. 367, 384 (1968) (“What
motivates one legislator to make a speech about a statute is not necessarily what motivates
scores of others to enact it . . . .”). But the Governor is a single person, so the inquiry as to
him is more straightforward.
The parties agree that, with respect to intent, the plaintiffs need only show that race
was “a motivating factor.” See Joint Pre-Trial Report, D.E. 187 at 8. Their understanding
of the law is correct. To satisfy the intent prong of an intentional vote dilution claim, a
1

plaintiff need not “prove that the challenged action rested solely on racially discriminatory
purposes. Rarely can it be said that a legislature or administrative body,” or even an
executive official, “made a decision motivated solely by a single concern, or even that a
particular purpose was the dominant or primary one.” Arlington Heights, 429 U.S. at 265
(citation and internal quotation marks omitted). In other words, “discrimination need not
be the sole goal in order to be unlawful.” Garza v. Cnty. of Los Angeles, 918 F.2d 763,
771 (9th Cir. 1990). See also Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279
(1979) (a discriminatory purpose “implies that the decisionmaker . . . selected or reaffirmed
a particular course of action at least in part because of, not merely in spite of, its adverse
effects upon an identifiable group”) (internal quotation marks omitted).
The Supreme Court has directed lower courts to “look to [its] decision in Arlington
Heights for guidance” in “assessing a jurisdiction’s motivation in enacting voting
changes.” Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 488 (1997) (citing Lodge, 458 U.S.
at 618, as an example in the vote dilution context under the Equal Protection Clause).
Though constitutional/intentional vote dilution claims are seldom raised in a post-Gingles
world, see Majority Op. at 49–50, the courts that have adjudicated such claims continue to
apply traditional equal protection principles to determine intent. See Garza, 918 F.2d at
771 (citing Arlington Heights for intent finding in intentional vote dilution case); League
of United Latin Am. Citizens v. Abbott, 601 F. Supp. 3d 147, 160 (W.D. Tex. 2022) (threejudge court) (“[C]ourts evaluating intentional-discrimination claims in the voting-rights
context fall back on doctrines established in Equal Protection cases.”); Georgia State Conf.
of NAACP v. State, 269 F. Supp. 3d 1266, 1279 (N.D. Ga. 2017) (three-judge court) (using
Arlington Heights to assess intent in an intentional vote dilution case governed by the
Fourteenth Amendment). That makes sense to me, and both sides agree that we should
apply the Arlington Heights factors, as supplemented by the Eleventh Circuit in Greater
Birmingham Ministries v. Sec’y of State for the State of Alabama, 992 F.3d 1299 (11th Cir.
2021), in analyzing the circumstantial evidence to determine whether there is
discriminatory intent. See Joint Pre-Trial Report, D.E. 187 at 8.

2

Importantly, neither Arlington Heights nor Greater Birmingham Ministries purport
to set out an exhaustive list of relevant factors. See Arlington Heights, 429 U.S. at 268;
Greater Birmingham Ministries, 992 F.3d at 1322. As summarized in Greater Birmingham
Ministries, the factors to consider are “(1) the impact of the challenged law; (2) the
historical background; (3) the specific sequence of events leading up to its passage; (4)
procedural and substantive departures; . . . (5) the contemporary statements and actions of
key legislators[;] . . . . (6) the foreseeability of the disparate impact; (7) knowledge of that
impact[;] and (8) the availability of less discriminatory alternatives.” Greater Birmingham
Ministries, 992 F.3d at 1322.
That these eight factors are merely instructive is confirmed by Hall v. Holder, 117
F.3d 1222 (11th Cir. 1997), a Voting Rights Act/Fourteenth Amendment vote dilution case
which predated Greater Birmingham Ministries. In Hall, the Eleventh Circuit explained:
Lodge’s endorsement of both Zimmer [v. McKeithen, 485 F.2d
1297 (5th Cir. 1973) (en banc), aff’d on other grounds sub
nom., East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636
(1976) (per curiam)] and Arlington Heights provides a list of
factors which, although not exclusive, are instructive in any
equal protection voting rights challenge. The Lodge Court
viewed the following Zimmer factors as relevant to
discriminatory intent: (1) minority access to any candidate
selection (“slating”) process; (2) the degree to which
government officials are responsive to minority needs; (3) the
justification for the electoral system; (4) past discrimination
and its effect on present-day political participation; (5) the size
of electoral districts; (6) the existence of a majority-vote
requirement; (7) in elections for multi-member offices,
whether single-shot voting is permitted; and (8) the existence
of geographic subdistricts. . . . The Lodge Court also found that
three other facts “bear heavily on the issue of purposeful
discrimination,” including: (9) the percentage of minority
citizens and voters in the jurisdiction; (10) racial polarization
in voting; and (11) the degree of minority electoral
success. . . . Additionally, after Lodge, courts must heed
Arlington Heights’s attention to legislative and administrative
history when evaluating a challenged electoral system, and pay
particular attention to the circumstances surrounding a

3

particular decision and deviations from the normal decisionmaking process.
Id. at 1225 (citations omitted). This long list of factors demonstrates just how contextual
the analysis can (and must) be.
Determining intent is a fact intensive inquiry that does not lend itself to neat
categorizations. Many of the relevant facts can fairly fall under several of the relevant
factors. See Greater Birmingham Ministries, 992 F.3d at 1322 n.33 (acknowledging same).
And no single factor is dispositive—“[t]he inquiry is practical.” Feeney, 442 U.S. at 279
n.24. See also N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204, 221 (4th Cir.
2016) (characterizing Arlington Heights as a “holistic” approach); Jessica A. Clarke,
Explicit Bias, 113 Nw. U. L. Rev. 505, 584 (2018) (“Arlington Heights calls for a holistic
review of evidence of discriminatory intent, considering history, context, effects on
minority groups, and statements by decisionmakers.”).

II
Having sat through trial, and having evaluated the evidence presented, I find that
Governor DeSantis acted with race as a motivating factor (among others) in drawing and
pushing through the Enacted Map. Here’s why.

A
“The important starting point for assessing discriminatory intent under Arlington
Heights is the impact of the official action [and] whether it bears more heavily on one race
than another.” Reno, 520 U.S. at 489 (quoting Arlington Heights, 429 U.S. at 266) (internal
quotation marks omitted). The “impact of an official action is often probative of why the
action was taken in the first place since people usually intend the natural consequences of
their actions.” Id. at 487 (citing Arlington Heights, 429 U.S. at 265−66). To that end, an
official like Governor DeSantis who personally submits a redistricting plan “having a
dilutive impact is more likely to have acted with a discriminatory intent . . . than [one]
whose plan has no such impact.” Id.
The Enacted Map challenged by the plaintiffs here undeniably impacts one race
more heavily than another and supports an inference that Governor DeSantis acted with

4

race as a motivating factor. “In the context of single-member districts, the usual device for
diluting minority voting power is the manipulation of district lines.” Voinovich v. Quilter,
507 U.S. 146, 153 (1993). Of course, congressional districts, including the former
Benchmark CD-5, necessarily undergo changes after each decennial census and their
shapes and dimensions cannot be seen or treated as eternally sacrosanct. In this case, the
2020 Census reported that Florida’s population had grown by nearly 15% in a decade—
gaining Florida an additional congressional seat and requiring the creation of a new
congressional map. See Joint Pre-Trial Report, D.E. 187 at 4.
Proposed by Governor DeSantis and later approved by the Florida Legislature, the
Enacted Map splintered the Black voters of Benchmark CD-5 into Enacted CD-2, Enacted
CD-3, Enacted CD-4, and Enacted CD-5. See Joint Pre-Trial Report, D.E. 187 at 7. The
mere reallocation of voters across districts, without more, does not prove (or even
sometimes suggest) discriminatory intent. But “[s]ometimes a clear pattern, unexplainable
on grounds other than race, emerges from the effect of the state action even when the
governing legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266.
That, for me, is the situation here.
The disparate impact of the Enacted Map is beyond dispute. And it is significant,
particularly when considered in light of Florida’s persistent efforts to bar Black voters in
this region from exercising their constitutional right to vote. See Majority Op. at 4−7,
33−35.

It bears repeating that between 1992 and 2022 Benchmark CD-5 and its

predecessor—the former CD-3—enabled Black voters in North Florida to begin the
difficult work of undoing more than a century of voter discrimination. For three short
decades, they experienced the promise of representative democracy. Indeed, despite never
constituting a majority of the voting-age population, Black residents in Benchmark CD5—which had racially-polarized voting, see Tr. 651−52—organized to elect candidates
who reflected their needs and values. They secured representation and effected change in
their communities. According to Charlie Clark, one of the plaintiffs, “if Blacks got
together, they were given a fair chance to choose somebody of their liking to represent
them.” Tr. 261.
5

The Enacted Map drawn by Governor DeSantis eradicated any such chance by
drastically weakening minority voting strength through “cracking,” the dispersal of Black
voters “into districts in which they constitute an ineffective minority of voters” and lack
the power to elect candidates of their choice.

See Voinovich, 507 U.S. at 153−54

(describing “cracking”); Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986) (same). The
Enacted Map fragmented Black voters to such an extent that, for the first time in thirty
years, they could no longer elect a congressional candidate of their choice anywhere in
North Florida.
Sometimes numbers help tell a story, and here’s what some of the relevant numbers
show. The Black Voting Age Population (“BVAP”) in Benchmark CD-5 was 46.20%, and
it was 35.32% in the Duval-only CD-5 in Map 8019 proposed by the Legislature. See
DX98; JX 0070; Tr. 184−86. Both of those versions of CD-5 performed for Black voters
in North Florida. See Tr. 156, 174, 187−88, 192, 670−71, 1011. But in the Enacted Map,
the BVAP for Enacted CD-4, which Alex Kelly identified as the relevant analogue, fell to
31.66%. See JX 0046 at 76. This decrease in the BVAP percentage, though seemingly
slight at first glance, proved determinative. Again, unlike the CD-5 configuration in the
Benchmark Map and in Map 8019, the configuration (and location) of CD-4 in the Enacted
Map did not perform for Black voters in North Florida. See JX 0048 at 34; PX 5042-032;
Tr. 740. And, as the legislative record shows, everyone knew at the time of enactment that
the Governor’s proposal did not have any congressional district that would perform for
Black voters in North Florida. See, e.g., JX 0048 at 34−35; JX 0047 at 14, 26, 42; JX 0050
at 8, 9, 26, 28, 45, 51, 58.
To put this in visual perspective, here are the Duval-only CD-5 in Map 8019 and
CD-4 in the Enacted Map.

6

Map 80191

Enacted Map2

The numerical differences may appear innocuous at first. Map 8019 produced a BVAP of
35.32% in CD-5 and 8.91% in CD-4, while the Enacted Map produced a BVAP of 31.66%
in CD-4 and 12.80% in CD-5. Compare BVAP figures for CD-4 and CD-5 in Map 8019
(https://perma.cc/4RBR-D79P), with BVAP figures for CD-4 and CD-5 in the Enacted Map
(https://perma.cc/2YS4-ATBD). Combined, the two districts contain exactly the same
number of Black voting age individuals across the two maps—264,792—yet Governor
DeSantis managed to eliminate any Black-performing district in North Florida through the
Enacted Map.3

1

https://perma.cc/5SN7-BACU.

2

https://perma.cc/TW6E-28X7.

In Map 8019, CD-4 and CD-5 contain a nominal BVAP of 53,374 and 211,418 individuals, respectively
(https://perma.cc/4RBR-D79P). In the Enacted Map, CD-4 and CD-5 contain a nominal BVAP of 187,108
and 77,684 (https://perma.cc/2YS4-ATBD). When added, the two figures in each map yield an identical
figure of 264,792 individuals.
3

7

Secretary Cord Byrd, in defending the Governor and the Enacted Map, argues that
non-performance for Black voters in North Florida was simply the consequence of Mr.
Kelly applying neutral districting principles (e.g., compactness) rather than pursuing an
engineered outcome. That contention, however, defies the reality on the ground and flies
in the face of the evidence presented at trial.
First, there is the reality on the ground. It has been known for decades that
cartographers can, with the advent of geographic information systems and computer
programs, create redistricting maps that achieve desired political and other outcomes while
providing purportedly neutral reasons (i.e., cover) for their map-making decisions. See,
e.g., Mark Monmonier, Bushmanders and Bullwinkles: How Politicians Manipulate
Electronic Maps and Census Data to Win Elections 155 (2001) (noting, almost a quarter
century ago, the “ease with which political cartographers can exploit block data and
geographic information systems”).

The task has only become easier over time as

computers have become faster and more powerful, and redistricting software programs
have become more sophisticated. To experience this technological advance firsthand, one
need only visit the Five-Thirty-Eight website, choose a state, input the desired outcomes
or preferences, and—presto!—you have a redistricting map that achieves your goals. Or
you can use a website like DistrictR to play around with the many map possibilities for
each state by using a number of variables. Whatever the choice of platform, everyone and
anyone can play the role of sophisticated cartographer today.4
Second, there is the evidence presented at trial. Mr. Kelly acknowledged the vast
discretion he had to choose among a number of alternatives in drawing district lines: “[I]n
redistricting . . . . if you’re complying with the law this way or that way, ultimately, you
can make a decision . . . . in some parts of the state, there’s thousands of ways you could
go, even if you’re complying with the law [and] if you’re drawing compact districts that
follow city and county lines.” Tr. 164. In other words, there were choices to be made, and

Five-Thirty-Eight, projects.fivethirtyeight.com/redistricting-2022-maps (https://perma.cc/K37W-54RK);
DistrictR, districtr.org (https://perma.cc/LJ5H-TQ9Y).
4

8

the Florida Legislature presented Governor DeSantis with the opportunity to adhere to
compactness measures and at the same time maintain a Black-performing district (with a
lower BVAP) in North Florida through Map 8019. Tellingly, the Secretary did not present
at trial the various configurations that Mr. Kelly had come up with and rejected, and we
are asked to take him at his word that he was not able to turn on the demographic data in
the redistricting software that he used to draw the Enacted Map.5
Out of the “thousands of ways” to comply with the law, Map 8019 offered the
Governor a compact Duval-only CD-5 that abided by city and county lines, and which also
performed for Black voters. See JX 0038 at 24; JX 0040 at 40−41, 44−45. Yet rather than
accept the Legislature’s proposal, or tweak it a bit, Governor DeSantis chose to say no and
submit a competing map that managed to introduce just enough changes to eliminate and
prevent performance by Black voters. Mr. Clark contemplated this stark reality in his
testimony: “[W]e really did not feel that the actions of the Governor [were] . . .
positive . . . for us as a Black people . . . . [I]t was a vicious assault on what I have come to
expect as just a regular voter . . . .” Tr. 271.6
The real-life impact of the challenged action is significant. Prior to the Enacted
Map, Mr. Clark resided in Benchmark CD-5 and was represented by former Congressman
Alfred Lawson Jr. According to Mr. Clark, Congressman Lawson was a community figure
who attended church every Sunday with local Black constituents, see Tr. 270, and would
“give his personal cellphone to somebody who [caught] him on the street.” Tr. 266. Mr.
Clark testified that he could provide “hundreds of examples” demonstrating the
Congressman’s responsiveness to his constituents. See Tr. 265. In the aftermath of a
hurricane, for instance, Congressman Lawson “did not wait for any government
assistance,” but instead identified the rural homes that needed new electrical poles and
fundraised to purchase and install them. See Tr. 266. Mr. Clark also testified that

5

More on that later.

At trial, the Secretary presented a number of race-neutral reasons offered by Governor DeSantis and his
subordinates for the district configurations in the Enacted Map. As I explain later, I find those reasons to
be pretextual and—on this record—probative of discriminatory intent.
6

9

Congressman Lawson sought regular feedback from his constituents. “We always could
call his office . . . and he would always have . . . meetings of some sort that you
could . . . talk to him about things that had happened in Washington . . . .” Tr. 269.
Another plaintiff, Dorothy Inman-Johnson, provided a similar account.

For

example, she testified that Congressman Lawson “understood the issues impacting [them],
and . . . [that] he was a representative that [they] trusted to know what those issues were
and how [they] were impacted” by them. Tr. 308−09. Ms. Inman-Johnson added that
Congressman Lawson “was very accessible” and maintained a local office “that had
staffers who . . . worked in the community, knew the people in . . . [the] community, and
worked for [the community].” Tr. 309. As a whole, Ms. Inman-Johnson believed that
Black residents had “access to reach [Congressman Lawson] and tell him what [their] needs
were, and [that] he would express that on the floor of Congress and [bring] a lot of benefits
back to . . . the district.” Tr. 309.
The Enacted Map replaced Benchmark CD-5 with four new districts, each of which
elected four white Republicans in 2022. Mr. Clark now resides in Enacted CD-2, where
former Congressman Lawson was defeated by current Congressman Neal Dunn. Mr.
Clark’s recent experiences with Congressman Dunn exemplify the practical impact of the
Enacted Map. In sharp contrast to his previous experiences with Congressman Lawson,
Mr. Clark testified that Congressman Dunn has ignored his requests for information and
has yet to hold a public meeting for local constituents. See Tr. 269−70. “Both times I
called . . . I left my name, my number, my email address. I just wanted . . . for somebody
to call me and tell me where I could mail a letter . . . but I did not get callbacks from either
one of [the calls].” Tr. 270.
Similarly, Ms. Inman-Johnson testified that Congressman Dunn was “not as
accessible” and that although she had managed to speak with his staff by phone, “nothing
was done on the issue that [she] had contacted them about.” Tr. 311. Ms. Inman-Johnson
said that Congressman Dunn was based in Panama City, rather than Tallahassee, and “was
not familiar at all with the long-time work of” local Black activists, such as Edwina
Douglas Stevens whom residents “considered the mother of the South Side of Tallahassee.”
10

Tr. 312−13. Ms. Inman-Johnson concluded her testimony by asserting that Congressman
Dunn and his staffers were less visible, less accessible, and less attentive to issues she cared
about, such as poverty, housing, and criminal justice. See Tr. 312−14.
“Necessarily, an invidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the law bears more heavily
on one race than another.” Washington v. Davis, 426 U.S. 229, 242 (1976). The undeniable
disparate impact of the Enacted Map weighs heavily in favor of a finding that race was a
motivating factor for Governor DeSantis.

B
Also probative is the sequence of events leading up to the passage of the Enacted
Map—mainly the Governor’s stated objections and reasoning for opposing the
Legislature’s proposed maps. The Governor first stepped into the picture in mid-January
of 2022 when he proposed Map 79 in place of the Florida Senate’s four prospective maps.
See Majority Op. at 12. Unlike the Senate’s maps, Map 79 did not maintain a Blackperforming district in North Florida. The Governor’s justification for not having such a
district was that the “Northern Florida map” was an “unconstitutional gerrymander”
because it “unnaturally connect[ed]” Tallahassee and Jacksonville. Tr. 83; Plaintiffs’ PreTrial Br., D.E. 194 at 12. Up until this point in the timeline, I take the Governor at his
word that he held a good-faith constitutional concern about a district spanning from
Tallahassee to Jacksonville.

Cf. Voinovich, 507 U.S. at 159 (“[The map drawer’s]

preference for federal over state law when he believed the two in conflict does not raise an
inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause
of the United States Constitution.”).
It was not until February 18, 2022, when the Governor sent his proxies—Robert
Popper and General Counsel Ryan Newman—out in support of his second proposal, Map
94, that signs of discriminatory intent (and pretext) began to arise. Messrs. Popper and
Newman generally argued that proposed CD-3 (the then-House-proposed reconfiguration
of Benchmark CD-5 in Map 8011) was racially gerrymandered. Yet under established
Supreme Court precedent, states can take race into account in drawing congressional
11

district lines. See Wyche v. Madison Par. Police Jury, 635 F.2d 1151, 1160 (5th Cir. 1981)
(“In drawing district lines, a legislative body is forbidden to discriminate invidiously, but
it is not required to be color blind.”). Although “the federal courts may not order the
creation of majority-minority districts unless necessary to remedy a violation of federal
law[,] . . . that does not mean that the State’s powers are similarly limited. Quite the
opposite is true . . . .” Voinovich, 507 U.S. at 156 (citation omitted). Awareness of race in
drawing district lines, therefore, “does not lead inevitably to impermissible racial
discrimination.” Shaw v. Reno, 509 U.S. 630, 646 (1993). Accord Bush v. Vera, 517 U.S.
952, 958 (1996) (plurality opinion) (“Strict scrutiny does not apply merely because
redistricting is performed with consciousness of race. Nor does it apply to all cases of
intentional creation of majority-minority districts.”); United Jewish Organizations of
Williamsburgh, Inc. v. Carey, 430 U.S. 144, 161 (1977) (plurality opinion) (“[N]either the
Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial
factors in districting and apportionment . . . . The permissible use of racial criteria is not
confined to eliminating the effects of past discriminatory districting or apportionment.”).
As a result, a racial gerrymander results only when race is “the predominant factor
motivating the legislature’s decision to place a significant number of voters within or
without a particular district.” Alabama Legis. Black Caucus v. Alabama, 575 U.S. 254,
272 (2015) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). Neither Mr. Popper nor
Mr. Newman ever convincingly explained why, under established Supreme Court
precedent, the proposed CD-3 constituted a racial gerrymander.7
In fact, Mr. Popper’s testimony before the Florida House was so weak that
representatives from both sides of the aisle resoundingly rejected it. See, e.g., Tr. 105–06
(Mr. Kelly agreeing that the House Subcommittee was “very hostile” to and “slanderous”

The factual issue I address is whether, under the first prong of a constitutional/intentional vote dilution
claim, the Governor acted with race as a motivating factor in proposing and pushing through the Enacted
Map. That inquiry may at first glance appear to be in tension with the accepted principle that a legislature
has discretion to consider race in drawing districts as long as race does not predominate. But the key
distinction is that race constitutes an impermissible factor when it is used in an invidious manner to dilute
minority voting rights. See Wyche, 635 F.2d at 1160.
7

12

of Mr. Popper). The negative reaction was not surprising. Mr. Popper admitted to not
having performed a “functional analysis to determine whether a more compact district
could have been drawn without diminishing the minority’s voting ability.” JX 0037 at 85.
Yet he still hypothesized that CD-3 was not narrowly tailored because of its alleged
noncompactness. See JX 0037 at 90, 101; PX 2236 at 5–6. The problem with this assertion
was (and is) that Mr. Popper put the cart before the horse—the requirement of narrow
tailoring only comes into play when race is a predominant factor such that a racial
gerrymander exists and requires a compelling state interest. See, e.g., Bethune-Hill v. Va.
State Bd. of Elections, 580 U.S. 178, 193 (2017) (“Where a challenger succeeds in
establishing racial predominance, the burden shifts to the State to demonstrate that its
districting legislation is narrowly tailored to achieve a compelling interest.”) (internal
quotation marks and citation omitted).
Moreover, applying the Secretary’s eye-ball test (i.e., “you know it when you see
it,” Tr. 810), it is not at all obvious that proposed CD-3 had a fatal compactness problem.
The Legislature’s proposed CD-3 was long (~200 miles), but so was CD-2 (~180 miles) in
the Enacted Map, which the Governor drew and submitted.

Though the lack of

compactness alone is not enough to establish racial gerrymandering, at this point in the
timeline it was the Governor’s primary objection. See JX 0056; Tr. 665.
In addition to proposed CD-3’s alleged noncompactness, Mr. Newman asserted that
the FDA’s non-diminishment provision should apply only to majority-minority districts.
See JX 0056. At the time, however, no Florida court had ever said as much. In fact, the
Florida Supreme Court said exactly the opposite in In re Senate Joint Resol. of Legislative
Apportionment 1176, 83 So. 3d 597, 625 (Fla. 2012) (Apportionment I) (“[T]he Legislature
cannot eliminate majority-minority districts or weaken other historically performing
minority districts where doing so would actually diminish a minority group’s ability to
elect its preferred candidates.”). Mr. Newman understandably chose not to contend with
that part of Apportionment I, and he instead selectively cited the decision for other
favorable propositions. See JX 0056. Tellingly, Mr. Newman would later drop the nondiminishment argument in his second memorandum. Compare JX 0056 at 5, with JX 0055
13

at 5.

Unsurprisingly, the Legislature rejected the Governor’s legal arguments—as

presented by Messrs. Popper and Newman—and moved forward with other proposed maps
that maintained a Black-performing district in North Florida.
The Governor’s opposition to the Legislature’s two-map plan, in particular Map
8019, betrays any semblance of good faith. The Duval-only configuration of CD-5, one
would think, resolved the Governor’s already dubious racial gerrymandering concerns.
Gone was the supposed “sprawling” or “bizarre” district created to connect “separate” and
“distinct” communities in Tallahassee and Jacksonville. See Majority Op. at 17. And it
should have been uncontroversial that the proposed CD-5 in Map 8019 continued to
perform for Black voters. Putting aside the other problems with his legislative testimony—
set out above—Mr. Popper conceded that complying with the FDA’s non-diminishment
provision “absolutely can be a compelling state interest.” JX 0037 at 101. So the
Legislature was well within its discretion to choose a map that continued to perform for
Black voters among the myriad of acceptable configurations. Significantly, Republican
leaders in the Florida House and Senate—who are also entitled to a presumption of good
faith, see Abbott v. Perez, 585 U.S. 579, 603 (2018)—were confident that the Legislature’s
two proposed maps complied with both the Florida and U.S. Constitutions. See JX 0038
at 24; JX 0040 at 40−41, 44−45.
I find it probative that the Governor’s immediate objections to the Duval-only
configuration of CD-5 in Map 8019 came without a reasoned explanation. On February
28, 2022, only a few days after the House Subcommittee proposed Map 8017 (the nearly
identical predecessor to Map 8019), the Governor publicly denounced it as containing
“unconstitutional districts” and promised to veto it. See Majority Op. at 20; Tr. 395. The
Governor was unequivocal, stating that “[t]hey can take that [his veto threat] to the bank.”
Majority Op. at 20. Then again on March 4, 2022, three days after the House Subcommittee
proposed Map 8019, the Governor reiterated his intentions of vetoing and called the
House’s two-map compromise, including Map 8019, dead on arrival.
explanations came with the Governor’s opposition at that time.

14

See id.

No

Not until he vetoed the Legislature’s two-map plan weeks later, on March 29, 2022,
did the Governor finally provide reasons for his objections in Mr. Newman’s veto memo.
See id. Under scrutiny, however, the reasons offered by Mr. Newman do not hold up.
Let’s start with the flimsiest objection—that the Duval-only CD-5 in Map 8019
violated the FDA’s non-diminishment provision because it reduced the BVAP in
Benchmark CD-5 by 10.88% (from 46.20% to 35.32%). See id. at 21–22. Curiously, up
until that point the Governor had argued that the FDA did not apply to Benchmark CD-5.
See id. at 15. So it is difficult to understand how the FDA somehow now mattered as to
the Duval-only CD-5. But even setting that difficulty aside, if the Governor’s real concern
was the reduction of the BVAP in the Duval-only CD-5 by about 11%, how could the
Governor propose the Enacted Map that only exacerbated the problem by reducing the
BVAP by over 14% (from 46.20% to 31.66%)? In other words, if the problem in the Duvalonly CD-5 was a low BVAP percentage, how could the remedy for that problem be a
district that took the BVAP percentage even lower?
Mr. Kelly, the Governor’s map drawer, had no answer for this at trial:
JUDGE JORDAN: So why is it valid to complain about these
maps on that ground when the Governor’s maps have the same
problem?
[MR. KELLY]: Your Honor, the -- Mr. Newman’s
commentary was getting at the dual -- the dual problem that the
legislature’s final map passed because the legislature’s
explanation was that it was drawing a race-based district and at
the same time, the legislature argued that it met its
nondiminishment standard. Mr. Newman was pointing out that
either way, the legislature wanted to look at it, either side of
the argument failed. So the legislature’s argument, it was
contradicting itself.
JUDGE JORDAN: Even though the Governor’s map had the
same problem? The Governor’s map doesn’t solve that
problem, right?
[MR. KELLY]: Correct, Your Honor.
Tr. 147. Counsel for the Secretary similarly argued at closing that the Governor’s nondiminishment objection was essentially an alternative argument, and that in reality the

15

Governor would pursue a “race-neutral map” because Benchmark CD-5 “is no benchmark
at all.” Tr. 1003–06. In counsel’s own words, that is “one of the other arguments that’s
playing out in the state court.” Tr. 1005. That makes no sense whatsoever.
If Benchmark CD-5 was not (or no longer) a benchmark, why did Mr. Newman use
it as a benchmark in criticizing the lower BVAP percentage in the Duval-only CD-5? If
the Governor believed that the application of the FDA’s non-diminishment requirement
here would violate the U.S. Constitution, that should have been his stated objection. But
it was not. Instead, the Governor purported to defend the FDA’s non-diminishment
requirement and then turned around and gutted that requirement even more with the
Enacted Map that he drew. I find the Governor’s FDA objection, as set out in Mr.
Newman’s veto memo, disingenuous.
Moreover, the Governor’s diminishment objection to the Duval-only CD-5 does not
fare any better on the merits. In League of Women Voters of Fla. v. Detzner, 172 So. 3d
363, 405 (Fla. 2015) (“Apportionment VII”), the Florida Supreme Court expressly rejected
the Florida Legislature’s argument that a decrease in the BVAP alone is sufficient to
constitute diminishment under the FDA. The focus, said the Florida Supreme Court,
should instead be on the “ability to elect a preferred candidate of choice,” which one
determines by way of a functional analysis. See id. See also Apportionment I, 83 So. 3d
at 625.8
As Mr. Kelly testified at trial, “more often than not” the Duval-only CD-5 “would
perform for the Black community’s candidate of choice.” Tr. 156. On the other hand, no
district in North Florida performs for Black voters in the Enacted Map. See Majority Op.
at 23, 26. If the Governor was really concerned with diminishment, he (through Mr. Kelly)
would have performed a functional analysis to see whether his proposal contained a North
Florida district that continued to perform for Black voters. But Mr. Kelly, an experienced
map drawer, testified that he did not perform any functional analysis whatsoever. See Tr.

It is generally accepted that functionality, and not just BVAP numbers, is the methodology for determining
whether a district performs. See, e.g., Bethune-Hill, 580 U.S. at 194−96.
8

16

918. If Mr. Kelly was telling the truth, then the Governor’s diminishment objection was
(and is) groundless. And if Mr. Kelly was not telling the truth—and he did in fact perform
a functional analysis—then the Governor’s objection—stated solely in terms of the BVAP
percentage decrease—was pretextual.
Let’s move on to the Governor’s objection to the Duval-only CD-5 on racial
gerrymandering grounds. That objection also quickly collapses in on itself. Again, recall
that a state can take race into account in drawing district lines as long as that factor does
not predominate. See Voinovich, 507 U.S. at 156; Wyche, 635 F.2d at 1160. Accord Bush,
517 U.S. at 958 (plurality opinion). A racial gerrymander results only when race is “the
predominant factor motivating the legislature’s decision to place a significant number of
voters within or without a particular district.” Alabama Legis. Black Caucus, 575 U.S. at
272.
The Governor argued that CD-4 in Map 8019 resembled a “bizarre doughnut shape
that almost completely surround[ed] [the Duval-only] District 5,” which could only be
explained by the Legislature’s desire to maintain a Black-performing district. See JX 0055
at 3. The Secretary’s expert witness, Dr. Douglas Mark Johnson, characterized CD-4 in
the Duval-only Map 8019 as “almost a full Pac Man.” Tr. 809–10. But that purported
desire on the part of the Legislature, even if true, does not establish a racial gerrymander
because strict scrutiny does not apply to all cases of race-conscious redistricting. See Bush,
517 U.S. at 958 (plurality opinion).
On its own terms, the Governor’s objection to the shape of CD-4 in the Duval-only
Map 8019 does not withstand scrutiny. If the Governor took that objection seriously, one
would think that he would have also objected to a nearly identical pair of Florida Senate
districts, Senate Districts 4 and 5. But he did not. See Majority Op. at 31–32.9
Other Florida officials in the Executive Branch, such as the Secretary of State, have in the past filed
comments in connection with the Florida Supreme Court’s review of the Legislature’s proposed state
legislative maps. See In re Sen. Jt. ADR of Legis. Apportionment 2-B, 89 So. 3d 872, 893–94, 893 n.13
(Fla. 2012). Governor DeSantis could have done the same here if he thought Pac-Man shapes were
indicative of non-compact redistricting. Although the Governor does not have veto power over the
Legislature’s state legislative maps, he could have objected to them like any other member of the public in
9

17

So that readers can see for themselves, both pairs—the enacted SD-4 and SD-5 of
Senate Map 8058, and the vetoed CD-4 and CD-5 of Congressional Map 8019—are
reproduced below.
Enacted Senate Map 805810

Vetoed Congressional Map 801911

At trial, Dr. Johnson testified on direct examination that the “ultimate rule of
compactness is . . . you know it when you see it.” Tr. 810. He stressed that SD-5 was
enveloped by only a two-thirds Pac-Man in Map 8058 versus CD-5’s almost full Pac-Man
in Map 8019. See Tr. 810. But that claim is visually wrong and, in any event, cannot
possibly be a distinction that makes or breaks a district under the U.S. Constitution’s racial
gerrymandering standards. Indeed, when pressed, Dr. Johnson later conceded that the two
districts were “very similar,” and that any difference between them was only “a matter of

the same way that he proposed congressional maps without having any express constitutional authority to
do so. See Fla. Const. art. III, §§ 7, 8, 16, 20–21.
10

https://perma.cc/ZU9Z-899M.

11

https://perma.cc/5SN7-BACU.

18

degrees.” Tr. 832. So much for the alleged constitutional Pac-Man problem in the Duvalonly Map 8019.
The problems with Governor DeSantis’ racial gerrymandering objection do not end
there. Mr. Kelly conceded that CD-24 in the Enacted Map complied with the U.S.
Constitution even though the Legislature had specifically drawn the district to avoid
diminishment under the FDA. See Majority Op. at 27−28 (discussing this point and
reproducing CD-24). The Governor apparently did not find CD-24 objectionable because
it did not create the same Pac-Man-like distortion that the Duval-only CD-5 supposedly
did. See id. As explained above, however, that objection lacks merit even according to the
Secretary’s own expert witness. It appears to me that the Governor’s theory of racial
gerrymandering is one of selective applicability. To the extent that the Governor argued
that CD-24 was different because it followed city and county lines, and did not diminish
under the FDA, the Republican leaders in both the Florida House and Senate debunked that
argument, explaining that the Duval-only CD-5 in Map 8019 complied with traditional
redistricting criteria and was constitutional under both the Florida and U.S. Constitutions.
See JX 0038 at 24; JX 0040 at 40−41, 44−45.

C
Because of the one-person, one-vote principle of the Equal Protection Clause, both
sides agreed that Duval County had to be split somewhere after the 2020 Census. See Tr.
228, 829. The Duval-only CD-5 had a lesser disparate impact on Black voters in North
Florida and was therefore a viable and less discriminatory alternative to what Governor
DeSantis drew in the Enacted Map.
As explained in Greater Birmingham Ministries, 992 F.3d at 1322, the existence of
such an alternative is relevant in assessing whether the circumstantial evidence points to
discrimination as a motivating factor. Cf. Cooper v. Harris, 581 U.S. 285, 317 (2017)
(“One, often highly persuasive way to disprove a State’s contention that politics drove a
district’s lines is to show that the legislature had the capacity to accomplish all its partisan
goals without moving so many members of a minority group into the district.”). This case

19

is somewhat unusual in that the Legislature itself, rather than the plaintiffs, had already
provided a less discriminatory alternative: Map 8019.
Enacted CD-4 is the analogue to Map 8019’s Duval-only CD-5. See JX 0046 at 76.
For Enacted CD-4, the legislative record demonstrates that the House performed a
functional analysis and determined that it did not perform for Black voters. See JX 0048
at 34. Dr. Matthew Barreto, one of the plaintiffs’ expert witnesses, confirmed that
assessment. He testified that Enacted CD-4 performed in only 1 out of 14 test elections:
the 2012 U.S. Senate race. See PX 5042-032; Tr. 740.
Map 8019’s Duval-only CD-5 competes with—and for the most part beats—
Enacted CD-4 on compactness and boundary grounds. Figure A below compares the
stipulated-to compactness and boundary analysis scores for Benchmark CD-5 and the two
analogous districts in Map 8019 and the Enacted Map. The “Test Elections” column
displays the respective performance scores for Black voters in each district.
Figure A12

The compactness and boundary analysis scores can be found on floridaredistricting.gov. See
Compactness Report for Benchmark Map (https://perma.cc/E83X-N8SX); Boundary Analysis Report for
Benchmark Map (https://perma.cc/X8JF-3V2Y); Compactness Report for Map 8019
(https://perma.cc/9K5Q-EUU3); Boundary Analysis Report for Map 8019 (https://perma.cc/8YJ9-CMJU);
Compactness Report for Enacted Map (https://perma.cc/SV9Y-XMWK); Boundary Analysis Report for
Enacted Map (https://perma.cc/EM6V-K9TV).
12

20

The key difference between Map 8019 and the Enacted Map drawn by the Governor
is that the former maintained a Black-performing district in North Florida and the latter did
not. Map 8019’s Duval-only CD-5 had higher compactness scores than Benchmark CD-5
and Enacted CD-4. And it scored higher than Enacted CD-4 on city, road, and rail
boundaries. Enacted CD-4, meanwhile, scored higher on county and water boundaries,
and lower on non-geographic/political boundaries.13
As previously mentioned, Mr. Kelly explained at trial that, when faced with equally
compact options for a district, it is appropriate to choose the configuration that contains a
district that performs for Black voters over one that does not. See Tr. 163–64. Indeed,
under the FDA, compactness is subordinate to non-diminishment. See Fla. Const. art. III,
§§ 20(a)–(b). It is difficult to understand, therefore, why the Governor was so adamant in
proposing and pushing congressional districts that prioritized marginal improvements in
compactness over performance when he rejected Map 8019.

D
In modern politics, “we rarely have legislators announcing an intent to discriminate
based upon race, whether in public speeches or private correspondence.” Veasey v. Abbott,
830 F.3d 216, 235 (5th Cir. 2016) (en banc). Instead, “people hide discriminatory intent
behind seemingly legitimate reasons” and these reasons “can and do mask racial intent.”
Id. at 236.
The aim of the Arlington Heights analysis is to help a trier of fact decide, in a case
involving circumstantial evidence, whether a discriminatory purpose is “cleverly cloaked
in the guise of propriety.” Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir. 1981), aff’d sub
nom. Rogers v. Lodge, 458 U.S. 613 (1982). Governor DeSantis made clear that there was
never a path forward for a Black-performing district in North Florida. To every proposal
by the Legislature, he voiced objections which turned out to lack legal or factual
The percentages listed in the boundaries columns of Figure A reflect how much of the district’s shape can
be accounted for by that factor. See Tr. 218–19. See also In re S. Joint Resol. of Legis. Apportionment 100,
334 So. 3d 1282, 1288 (Fla. 2022) (explaining that an 82.7% boundary analysis score “show[s] that the
average district in the new [Florida] House plan follows political and geographical boundaries along 82.7%
of its perimeter”).
13

21

foundation. Of all the maps in play, it was only the Governor’s proposal—which became
the Enacted Map—that splintered Black voters and eliminated North Florida’s only Blackperforming congressional district.

Applying the Arlington Heights and Greater

Birmingham Ministries factors holistically, the way for me to make sense of all of this is
to infer—and therefore find—that the Governor was motivated, at least in part, by race in
drawing and submitting the Enacted Map.

III
In certain cases, a plaintiff may also establish discriminatory intent by
demonstrating that a decisionmaker’s seemingly race-neutral reasons are pretextual. See,
e.g., Gray v. Bd. of Higher Educ., City of New York, 692 F.2d 901, 905 (2d Cir. 1982) (a
plaintiff “must show that the discrimination he suffered was intentional . . . [under]
Arlington Heights . . . . [o]r, he could establish that the reasons given by [the defendant]
were pretexts”). The Secretary acknowledged this alternative basis in his post-trial brief.
See Secretary’s Post-Trial Br., D.E. 217 at 91 (“Pretext isn’t an express Arlington Heights
factor, though Arlington Heights cases have touched on the asserted justifications for
governmental actions.”).
“When the Constitution forbids the political branches to do something directly . . .
it becomes necessary to curtail the use of proxies—seemingly neutral criteria adopted only
because they approximate a more desired (but strictly forbidden) scheme of classification.”
La Porte Cnty. Republican Cent. Comm. v. Bd. of Comm’rs of La Porte, 43 F.3d 1126,
1130 (7th Cir. 1994). The plaintiffs have made a showing of pretext as to Governor
DeSantis and that showing confirms my finding that for him race was a motivating factor
in drawing and submitting the Enacted Map.

A
A “factfinder’s rejection of the [defendant’s] legitimate, nondiscriminatory reason
for its action does not compel judgment for the plaintiff.” Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 146 (2000) (citation and internal quotation marks omitted). After
all, the “ultimate question is whether the [defendant] intentionally discriminated, and proof
that the [defendant’s] proffered reason is unpersuasive, or even obviously contrived, does
22

not necessarily establish that the plaintiff’s proffered reason . . . is correct.” Id. at 146−47.
An official can justify a challenged action any number of ways—all pretextual—but
nonetheless harbor no underlying discriminatory purpose. “In other words, it is not enough
to dis believe the [defendant]; the factfinder must believe the plaintiff’s explanation of
intentional discrimination.” Id. at 147 (citation and internal quotation marks omitted).
Nevertheless, “it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the [defendant’s] explanation.” Id. As an example, in
this context that inference could rest not only on “a blend of history and an intensely local
appraisal of the design and impact of the [challenged action],” but also on the credibility
of the official’s justifications themselves. See White v. Regester, 412 U.S. 755, 769−70
(1973). See also Lodge, 458 U.S. at 622 (same). As the Supreme Court has put it:
The factfinder’s disbelief of the reasons put forward by the
defendant . . . may, together with the elements of the prima
facie case, suffice to show intentional discrimination. Thus,
rejection of the defendant’s proffered reasons will permit the
trier of fact to infer the ultimate fact of intentional
discrimination. Proof that the defendant’s explanation is
unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it
may be quite persuasive. In appropriate circumstances, the
trier of fact can reasonably infer from the falsity of the
explanation that the [defendant] is dissembling to cover up a
discriminatory purpose. Such an inference is consistent with
the general principle of evidence law that the factfinder is
entitled to consider a party’s dishonesty about a material fact
as affirmative evidence of guilt.
Reeves, 530 U.S. at 147 (citation and internal quotation marks omitted). As relevant here,
“once the [defendant’s] justification[s] ha[ve] been eliminated, discrimination may well be
the most likely alternative explanation, especially since the [defendant] [was] in the best
position to put forth the actual reason for [his] decision.” Id. at 134.
The record in this case supports a finding that Governor DeSantis proffered
objections to the Duval-only CD-5 that were pretextual throughout a redistricting process
that ultimately eliminated the sole Black-performing district in North Florida.

23

The

Secretary’s assertion that the elimination of a Black-performing district in North Florida
was the natural byproduct of a map drawn solely for reasons of compactness—and
compactness alone—contradicts the evidentiary record and is not credible for the reasons
set out earlier and summarized again below.
In January and February of 2022, Governor DeSantis objected to the Legislature’s
preliminary maps (which retained a Black-performing district resembling Benchmark CD5) twice on grounds of compactness. This position was reiterated at trial by Mr. Kelly, the
Governor’s map drawer, who confirmed that “the Governor’s objection was essentially that
Benchmark CD-5 was unconstitutional because it was elongated and not compact and
crossed many political lines.” Tr. 114. The following month, the Legislature addressed
these concerns directly by offering Governor DeSantis a two-map plan. As previously
discussed, the primary Map 8019 preserved a Black-performing Duval-only CD-5 in North
Florida, while also retaining a compact shape and respecting political subdivisions. Mr.
Kelly himself admitted as much at trial. See Tr. 116, 122.
At this point Governor DeSantis’ objections changed.

As articulated in Mr.

Newman’s memo, see JX 0055, the complaint was now that the Duval-only CD-5 in Map
8019 resulted in impermissible diminishment under the FDA. Specifically, Governor
DeSantis argued that “there was no good reason to believe that District 5 [in Map
8019] . . . complie[d] with the Florida Constitution’s non-diminishment requirement. . . .
[because] its nearly eleven percentage point drop [was] more than slight.” JX 0055 at 6.
Mr. Kelly reiterated this position at trial—claiming that Map 8019 resulted in
impermissible diminishment because the Duval-only CD-5 “had a double-digit drop in its
Black voting age population” relative to Benchmark CD-5. See Tr. 144.
If diminishment in violation of the FDA was the problem, one would expect that the
Governor’s proposed map would remedy this concern. But then Governor DeSantis
submitted his third and final map, which diminished the BVAP in the relevant analogue
district even more. See JX 0046 at 76. As a reminder, Map 8019, which Governor DeSantis
had vetoed just two weeks earlier, diminished the BVAP for CD-5 by 10.88%—from
46.20% in the Benchmark CD-5 configuration to 35.32% in the Duval-only CD-5
24

configuration (which, despite the drop, maintained a Black-performing district). See
DX98; JX 0070; Tr. 184−86. The Enacted Map, which was drawn and proposed by the
Governor, diminished the BVAP for the relevant comparison district (the Enacted CD-4)
by 14.54%—from 46.20% in Benchmark CD-5 to 31.66% in the Enacted CD-4, and made
the district non-performing for Black voters. See Figure A (set out earlier).
In sum, Governor DeSantis objected to a Black-performing, compact district on
FDA diminishment grounds and then proposed a map that resulted in even more
diminishment and eliminated the sole Black-performing district in North Florida. These
“[s]everal points, considered together, reveal a significant mismatch between the decision
the [Governor] made and the rationale he provided.” Dep’t of Com. v. New York, 139 S.Ct.
2551, 2575 (2019) (finding bad faith or improper behavior where the asserted rationale for
a challenged action appeared contrived). Notably, Mr. Kelly and counsel for the Secretary
could not explain this state of affairs at trial.
Perhaps the Governor’s actions could be partially explained on the basis of
partisanship (i.e., that the North Florida districts in the Enacted Map were drawn for
partisan gain). But the FDA prohibits partisan advantage as a criterion for redistricting,
see Fla. Const. art. III, § 20(a), and for obvious political and other reasons the Governor
cannot publicly admit (through the Secretary) to doing something that the Florida
Constitution flatly forbids. Indeed, Mr. Kelly testified on numerous occasions that he did
not take partisanship or incumbency into account. See Tr. 20, 82, 97, 220−21, 239, 444.
If the Governor is not willing to fall on the partisanship sword, and the Secretary has chosen
not to defend on it, it is not my obligation to construct that theory for them. See United
States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020) (“In our adversarial system of
adjudication, we follow the principle of party presentation.”); Greenlaw v. United States,
554 U.S. 237, 243 (2008) (“In our adversary system, in both civil and criminal cases, in
the first instance and on appeal, we follow the principle of party presentation. That is, we

25

rely on the parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.”).14

B
Mr. Kelly’s testimony at trial regarding his initial consideration and later nonconsideration of race in drawing the Enacted Map also weighs against the Governor with
regard to pretext. In many critical respects, I did not find Mr. Kelly to be a credible witness.
When asked whether he had “racial demographic data turned on” as he was drawing
four majority-white districts in North Florida, he responded this way: “It’s going to sound
funny, but I couldn’t figure out how to turn it on. I couldn’t figure out how to show that
layer of information.” Tr. 233. According to Mr. Kelly, it was not until after he had drawn
the districts in North Florida that he realized what he had done. See Tr. 171. That
testimony, to me, is not worthy of credence. Mr. Kelly is perhaps one of the most
experienced map drawers in Florida. At the time he was drawing the Enacted Map, he was
working in the Governor’s Office, and both chambers of the Legislature were run by
members of the Governor’s party. In other words, Mr. Kelly had all of the State’s resources
at his fingertips. I cannot believe that in drawing the map that the Governor submitted to
the Legislature that Mr. Kelly somehow failed to pick up the phone or send an e-mail to
sort out the software problem. Mr. Kelly testified that he unsuccessfully tried to create a
Black-performing district in North Florida with a BVAP of 40%. See Tr. 161, 934−35. If
he tried to do as he said, Mr. Kelly obviously had the racial demographic data working at
some point. In my calculation as a factfinder, Mr. Kelly’s testimony on this point was
damning evidence against the Governor.15

In any event, even if partisan gain in violation of the FDA was one of the Governor’s reasons for drawing
the Enacted Map, I still find that race was also another motivating factor. In the redistricting arena, “[m]ixed
motives are inevitable.” La Porte Cnty. Republican Cent. Comm., 43 F.3d at 1130.
14

Mr. Kelly tried to explain that, in lieu of having the racial demographic data turned on, he engaged in a
“painstaking process” of “frequently” running reports for the BVAP numbers. See Tr. 912−13. I do not
buy that explanation given Mr. Kelly’s (1) vast experience as a map drawer and (2) access to resources at
the Legislature that would have allowed him to turn on the racial demographic data.
15

26

My evaluation of Mr. Kelly’s testimony on this point is not unique. In April of
2022, Mr. Kelly appeared before the Senate Committee on Reapportionment during the
special session convened by Governor DeSantis to discuss what would ultimately become
the Enacted Map. He stated that “he had not done a functional analysis on any of the
districts” and that “[r]ace and political partisan data in no way related at all to . . . any of
the districts on the map” because he had not examined that data. See JX 0046 at 62−66.
This testimony was met with suspicion by some in the Legislature. The day after Mr. Kelly
testified, Senate Minority Leader Audrey Gibson reacted to the presentation on the Senate
floor: “It’s clear as mud . . . in terms of the data because I thought I heard in the committee
that Mr. Kelly didn’t use any data.” JX 0045 at 78. Senator Gibson later added that the
FDA was meant to “afford protection of racial and language minorities” and that “the
information . . . received and heard yesterday in the committee . . . . [was] diminishment
by any means.” JX 0047 at 9−10. Senator Randolph Bracy reacted similarly to Mr. Kelly’s
statements: “[H]is presentation was comical . . . . He was just drawing, had no idea, didn’t
look at any data. . . . I find it comical that he would even say that.” JX 0047 at 5−6.

C
As previously explained, Map 8019 offered both a more compact and less
discriminatory alternative for a Black-performing district in North Florida: the Duval-only
CD-5. It was rejected by Governor DeSantis.
To the extent that the Governor’s objection to the Duval-only CD-5 was lack of
compactness, the State Senate map for SD-4 and SD-5 had a similar Pac-Man look, and
the Governor did not voice any complaint about them to the Florida Supreme Court.
Moreover, Dr. Johnson, one of the Secretary’s expert witnesses, ultimately conceded that
the situations were “very similar” and that any differences were “a matter of degree.” Tr.
832. The proffered compactness objection therefore rings hollow to me, and I find it to be
pretextual as well.16

Even if compactness was one of the factors considered by the Governor, I still find that race was also
another motivating factor.
16

27

IV
Viewed through the lens of the Arlington Heights/Greater Birmingham Ministries
factors, the evidence presented at trial convinces me that Governor DeSantis drew,
proposed, and submitted the Enacted Map with race as a motivating factor. That conviction
is reaffirmed by my further finding that the Governor’s main reasons for objecting to the
Duval-only CD-5 in Map 8019 were pretextual.
I do not think that Governor DeSantis harbors personal racial animus toward Black
voters. But I do believe that he used race impermissibly as a means to achieve ends
(including partisan advantage) that he cannot admit to. As others have explained, a finding
of discriminatory purpose in these circumstances is “not tantamount to a finding” that the
Governor “had a racist motivation,” but is instead “the product of . . . [him] engag[ing] in
the single-minded pursuit of incumbency” by disregarding and targeting the ability of
Black voters in North Florida to elect their candidate of choice. See Veasey, 830 F.3d at
336 (Costa, J., concurring in part and dissenting in part) (citation and internal quotation
marks omitted). See also Garza, 918 F.2d at 778 (Kozinski, J., concurring in part and
dissenting in part) (explaining that a finding of intentional discrimination does not mean
that officials “harbored any ethnic or racial animus towards” a minority community, but
rather that they “engaged in the single-minded pursuit of incumbency and ran roughshod
over the rights of protected minorities”). I join the Court’s opinion because I agree that the
plaintiffs have failed to prove that the Legislature ratified or adopted the Governor’s use of
race as a motivating factor. See generally Brnovich v. Democratic Nat’l Committee, 141
S.Ct. 2321, 2350 (2021) (“The cat’s paw theory has no application to legislative bodies.”)
(internal quotation marks omitted); O’Brien, 391 U.S. at 383 (“Inquiries into [legislative]
motives or purposes are a hazardous matter.”).

28

WINSOR, J., Concurring in Part and Concurring in the Judgment.
Plaintiffs claim Florida’s Enacted Map violates the Constitution by discriminating
based on race. But after a full trial on the merits, they have not proven their case. To
succeed, they needed to prove both a discriminatory purpose and a discriminatory effect.
See Greater Birmingham Ministries v. Sec’y of State for State of Ala., 992 F.3d 1299, 1321
(11th Cir. 2021). And as the court’s opinion cogently explains, Plaintiffs did not show that
the Legislature acted with a discriminatory purpose. That ends the case.
I join the court’s opinion in substantial part, and I concur in the judgment.1 I write
separately for two reasons. First, I explain why Plaintiffs did not prove discriminatory
purpose as to the Legislature or the Governor. Second, I explain that Plaintiffs’ failure to
prove discriminatory effect provides an independent reason to deny relief.

I.
The court’s opinion does not address whether the Governor acted with a
discriminatory purpose because it would not change the outcome. Even assuming for
argument’s sake that he did act with racial animus, the Legislature did not. That alone
dooms Plaintiffs’ case. Judge Jordan, though, writes separately to express his view that the
Governor acted with a discriminatory purpose, at least in part. I respectfully disagree with
that conclusion and write to explain why.
Because Plaintiffs have no direct evidence of racial animus, they rely on
circumstantial evidence. Cf. Rogers v. Lodge, 458 U.S. 613, 618 (1982) (“Necessarily, an
invidious discriminatory purpose may often be inferred from the totality of the relevant
facts . . . .” (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)); Vill. of Arlington

1

I join Sections I, IV, V.A, V.B, VI, and VII. As to Section IV, I agree that Mr. Clark testified
credibly and has standing. A single Plaintiff with standing suffices, see Rumsfeld v. F. for Acad. &
Institutional Rts., Inc., 547 U.S. 47, 53 n.2 (2006), and I would stop with Mr. Clark. Ms. Keith’s testimony
was insufficient to show associational standing for Common Cause because merely having members in an
affected district does not establish standing. There had to be proof that those members intended to vote, and
Ms. Keith could not say that they did. See Tr. 498-99; cf. Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 489 (1982) (“The law of averages is not a substitute for
standing.”).

1

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). But the circumstantial
evidence Plaintiffs cite does not prove racial animus.

A.
First, Plaintiffs argue that the Governor went to great lengths to dismantle the former
Congressional District 5 (“Benchmark CD5” or the “Benchmark”), which was a blackperforming district. The evidence at trial indeed proved the Governor opposed Benchmark
CD5 and any district that resembled it. He publicly stated he opposed race-based
districting, and as all sides agree, Benchmark CD5 was a race-based district: it was drawn
specifically to ensure it would elect black-preferred candidates.2
To me, opposing race-based redistricting cannot be proof of discrimination or racial
animus. As Plaintiffs’ counsel acknowledged, “it’s not racist to disagree” with race-based
redistricting policies. Tr. 942. In fact, there are ample good-faith reasons some might
oppose race-based districting. For one, “[w]hen the State assigns voters on the basis of
race, it engages in the offensive and demeaning assumption that voters of a particular race,
because of their race, ‘think alike, share the same political interests, and will prefer the
same candidates at the polls.’” Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (quoting
Shaw v. Reno, 509 U.S. 630, 647 (1993)). Moreover, “[r]ace-based assignments ‘embody
stereotypes that treat individuals as the product of their race, evaluating their thoughts and
efforts—their very worth as citizens—according to a criterion barred to the Government
No one disputes this. See Tr. 944 (“Judge Winsor: But you don’t dispute [Benchmark CD5] was
drawn for race-based purposes, right? [Plaintiffs’ counsel]: All of these were. Yes, Your Honor. I don’t
want to get into arguing about predominance or consideration. That’s an issue, but—yes, it was drawn for
race-based reasons, just like all five of these [former] districts were . . . .”). In their operative complaint,
Plaintiffs described Benchmark CD5 as “connect[ing] the Black populations of Tallahassee and
Jacksonville,” and they included an image of the Benchmark “with Black VAP Overlay,” showing just how
carefully the district was drawn to capture black voters. ECF No. 131 ¶ 81; see also DX85, DX89, DX90.
Their expert testified that certain areas of Duval were “included in [the Benchmark] because they wanted
to allow Blacks to elect candidates of their choice. I agree with that.” Tr. 445; see also id. at 800 (“And so
what you can see on his map on the left is that that benchmark district was drawn with these fingers to get
every possible Black resident into that district. Anywhere there was a collection of a few dots, they drew a
finger to grab those residents.”); ECF No. 218 ¶ 405 (Plaintiffs’ proposed finding: “[T]he Florida Supreme
Court created Benchmark CD-5 specifically to comply with the FDA’s non-diminishment provision, and
preserve a ‘historically performing minority district[]’ in North Florida—even though Benchmark CD-5
did not then have a population that was majority-Black.”).
2

2

by history and the Constitution.’” Id. (quoting Metro Broad., Inc. v. F.C.C., 497 U.S. 547,
604 (1990) (O’Connor, J., dissenting)). In short, “[r]acial classifications are antithetical to
the Fourteenth Amendment, whose central purpose was to eliminate racial discrimination
emanating from official sources in the States.” Shaw v. Hunt, 517 U.S. 899, 907 (1996)
(cleaned up); see also League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511
(2006) (Roberts, C.J., concurring in part and dissenting in part) (“It is a sordid business,
this divvying us up by race.”). So the fact that the Governor sought to dismantle race-based
Benchmark CD5 does not help Plaintiffs’ claim.
Yet that is much of Plaintiffs’ case. Plaintiffs emphasize not only that the Governor
wanted to eliminate Benchmark CD5 but also just how much he wanted to do so. They note
that he went so far as to veto a plan that was inconsistent with his views. Plaintiffs explain
it this way:
In an unprecedented manner, he hijacked the redistricting process and, with
much bluster, demanded the elimination of that district. He insisted that he
would veto any map that preserved Benchmark CD-5, and he insisted that
the Legislature pass his own favored map—drawn by one of his staffers—
that eliminated a Black opportunity district in North Florida.
ECF No. 218 ¶ 2.
To be sure, the Governor’s opposition was strong. But a strong opposition to racebased districting is no better evidence of racial animus than a moderate opposition to it.
Florida governors, like United States Presidents, routinely use their legislative authority to
advance their policy goals, just as legislators do.3 Plaintiffs call the Governor’s insistence
here “bull[ying] the legislature.” ECF No. 218 ¶ 310. Others might call it exercising
political will. But one shouldn’t call it racist. In my view, the fact that the Governor went
to great lengths to oppose race-based redistricting provides zero evidence of racial animus.

3

In Florida, Congressional redistricting is done through the ordinary legislative process, a process
in which the Governor has legislative authority. See Fla. Const. art 3, § 8; see also Smiley v. Holm, 285 U.S.
355, 369 (1932) (describing gubernatorial veto “as a part of the legislative process”).

3

B.
Plaintiffs also argue that Florida’s history sheds light on the Governor’s motivation.
It is true that a body’s history of discrimination can sometimes be a relevant consideration,
see Arlington Heights, 429 U.S. at 267, but it is entirely unhelpful here. The fact that
Florida segregated its public facilities decades ago does not make it more likely that
Florida’s current Governor (born in 1978) acted with racial animus in 2022.4 And nothing
about a law adopted in the 1880s helps us understand the Governor’s recent legislative
purpose. Cf. Tr. 340-41 (Plaintiffs’ expert testimony about 1887 legislative action). As the
Supreme Court has explained, “unless historical evidence is reasonably contemporaneous
with the challenged decision, it has little probative value.” McCleskey v. Kemp, 481 U.S.
279, 298 n.20 (1987); accord League of Women Voters of Fla. Inc. v. Fla. Sec’y of State,
66 F.4th 905, 923 (11th Cir. 2023) (“A federal court must remain mindful of the danger of
allowing the old, outdated intentions of previous generations to taint Florida’s legislative
action forevermore on certain topics.” (cleaned up) (quoting Greater Birmingham
Ministries, 992 F.3d at 1325)). “Although the history of racial discrimination in this
country is undeniable, we cannot accept official actions taken long ago as evidence of
current intent.” McCleskey, 481 U.S. at 298 n.20. Florida’s history does not help Plaintiffs
here.

C.
Plaintiffs next argue pretext. They contend the Governor’s proffered objections to
the Legislature’s proposed maps cannot be his real reasons. But Plaintiffs’ pretext
arguments cannot withstand scrutiny.

Largely for this reason, I do not join Sections II or III of the court’s opinion. The court sets out a
summary of the trial evidence and makes many findings not pertinent to our conclusion that Plaintiffs have
not proven legislative ratification of any impermissible intent. Plaintiffs themselves conceded they had no
evidence that any legislator acted with a racially discriminatory purpose. Their entire theory was that the
Governor acted with such a purpose and that by adopting the Governor’s preferred map, the Legislature
ratified his impermissible purpose. See Tr. 982 (Plaintiffs’ counsel: “I’m contending that the legislature, by
passing this, bears responsibility for the racial animus that motivated, in part, the Governor. I’m not
accusing any legislator of racial animus.”). We can and do reject that theory without regard to the history
the court describes. Section VI lays out all facts necessary to our conclusion.
4

4

Plaintiffs contend that after the Governor criticized Benchmark CD5 and the
Legislature’s similar proposal as noncompact racial gerrymanders, the Legislature offered
him a black-performing district that did not resemble those at all. And indeed, the
Legislature approved a map that included what the parties called the “Duval-only” option
(CD5 in Map 8019). That district was reasonably compact, and with 35% black voting-age
population, it would typically perform for black-preferred candidates. In Plaintiffs’ telling,
this proposed district addressed all the Governor’s proffered concerns, yet “the Governor
wouldn’t take ‘yes’ for an answer.” ECF No. 218 ¶ 3. This, they say, shows the Governor’s
objections were all pretext. There are several problems with this argument.
For starters, the Duval-only option was not in a standalone bill; it was part of a twomap package. The primary map included the Duval-only option, but the bill also had a
secondary map that would automatically become effective if a court invalidated the
primary map. And the secondary map included a long, meandering, race-based district like
Benchmark CD5. So even assuming the Duval-only map satisfied the Governor’s proffered
objections (more on that below), the Governor could not accept it without simultaneously
blessing the Jacksonville-to-Tallahassee race-based district he opposed. He would have to
say “yes” not only to the Duval-only option but also to race-based redistricting.5
Saying yes to the secondary map would be no small thing. In this litigation,
Plaintiffs assure us the primary map was legally valid. If that were true, that would make
the secondary map a nonissue. But in the legislative process, many were not so convinced.
Representative Geller, for one, opposed the bill precisely because he found the Duval-only
option unconstitutional. JX38 at 134-35 (“I don’t believe that the change in the proposed
minority district contained wholly within Duval County is constitutionally compliant in

5

The two-map package was unusual. At earlier stages of the litigation, Plaintiffs described it as
“extraordinary.” ECF No. 131 ¶ 114. At the time, they contended this supported their Arlington Heights
analysis. Cf. 429 U.S. at 267 (“Departures from the normal procedural sequence also might afford evidence
that improper purposes are playing a role.”). But now having acknowledged they have no evidence of the
Legislature’s animus, relying instead wholly on the Governor’s alleged animus, Plaintiffs focus on other
purported departures. At any rate, there was no evidence that the Governor supported a two-map plan. He
vetoed the only one presented to him.

5

that I think that it represents a substantial dilution or diminishment of the minorities’ ability
to elect representatives of that community’s own choice. In that sense, I believe that
proposed map is constitutionally deficient.”). He was not alone. See, e.g., id. at 145 (Rep.
Skidmore: “I am very concerned about the primary map District 5 because it does seem to
me, based on language that the House actually used, that it does reflect diminishment. And
I recognize that the secondary map is there in case the Court does rule that way.”); see also
JX40 at 28 (Sen. Ausley: “I’m very concerned about this map. I believe that it violates the
Florida Constitution.”); id. at 35 (Sen. Cruz: “I truly do not believe this one is
constitutional.”).6
Others apparently had concerns too, as the only logical reason to include a
secondary map is to account for the possibility that a court would invalidate the primary
one. Representative Geller put it this way:
The notion that that map is constitutionally compliant is belied by the very
fact that there is a so-called secondary map in an effort to assure
constitutional compliance. If there was confidence that the proposed district
in Duval County was constitutionally compliant, we would not have a
secondary map or a need for a secondary map. And it is therefore apparent
that even the proponents of that map have no confidence in it as being
constitutionally compliant.
JX38 at 135-36; see also ECF No. 131 ¶ 114 (“[T]he Legislature approved two maps,
recognizing that the map it created in an effort to placate the Governor could easily be
found illegal.” (emphasis added)).
Aside from the two-map aspect, there were other nonpretextual reasons to reject the
Duval-only option. For one, there were indications that it too was drawn for race-based
purposes, even though it was compact. J. Alex Kelly, who drew portions of the enacted
map and who was heavily involved in the redistricting effort, credibly testified that “the
House admitted publicly they drew CD-5 and [Map 8019] with race-based intentions. They
subordinated other standards to try to accomplish a racial purpose.” Tr. 124; see also JX38

6

The evidence at trial was that the Duval-only CD-5 performed for black voters in 9 of 14 test
elections (or approximately 64% of them), while Benchmark CD-5 performed in all 14 of them.

6

See Fla. Const. art. III, § 16. It is true, as Plaintiffs note, he could have lodged an objection
as an ordinary citizen. But his not engaging as a private citizen in a process lacking any
gubernatorial role cannot support a conclusion that he acted with animus in a separate
process in which he has a substantial constitutional role.
Plaintiffs further argue that the Governor’s complaint about the length of
Benchmark CD5 and its counterpart in the two-map package must be pretext. ECF No. 218
¶¶ 175-76. Why, Plaintiffs wonder, would the Governor complain about the length of those
districts while registering no objection to the enacted District 2, “that also runs about 200
miles in length”? Id. ¶ 175; see also id. (“Plainly, then, the Governor had no objection to
elongated congressional districts as such.”).
But Plaintiffs have not shown the Governor complained about length for length’s
sake. Instead, the Governor raised length in the broader context of his objection to the racebased district. The Governor’s general counsel submitted this explanation to the
Legislature:
The proposed district, which largely tracks current Congressional District 5,
spans approximately 200 miles from East to West and cuts across eight
counties to join a minority population in Jacksonville with a separate and
distinct minority population in Leon and Gadsden Counties. The district is
not compact and does not otherwise conform to usual political or geographic
boundaries. Instead, it appears to be drawn solely to combine separate
minority populations from different regions of northern Florida in a less than
majority-minority district so that together they may have an opportunity to
elect a candidate of their choice.
Where race is “the predominant factor motivating the legislature’s decision
to place a significant number of voters within or without a particular district,”
the legislature must prove that such “race-based sorting of voters serves a
‘compelling interest’ and is ‘narrowly tailored’ to that end.” Because the
Legislature cannot show that the proposed Congressional District 3 would
satisfy strict scrutiny, the proposed district violates the Fourteenth
Amendment to the U.S. Constitution and should not be included in any map
enacted by the Florida House of Representatives.
JX56 at 1 (citation omitted). Plaintiffs excerpt from this only the italicized portion as they
argue the Governor’s “objection to elongated congressional districts” is pretextual. ECF
No. 218 ¶ 175.

8

At any rate, both districts (Benchmark CD5 and Enacted CD2) may be similar
lengths, but a quick look at both shows they are not similar. Below is the district the
Governor criticized for (among other things) “span[ning] approximately 200 miles from
East to West” and having been “drawn solely to combine separate minority populations
from different regions,” JX56 at 1. Note especially the areas around the district’s biggest
population centers, Jacksonville and Tallahassee:
Benchmark CD5 (from DX91)

Below, by contrast, is enacted CD2, which the Plaintiffs argue shows pretext:
Enacted CD2 (from DX93)

Note the absence of fingers poking into or out of urban areas. There are no jagged edges or
curious appendages. It is really quite boring. In short, the two districts are both long, but
they are nothing alike. The Governor’s objecting to the former and approving the latter
does not show pretext.

9

Finally, Plaintiffs argue that the Governor’s Fourteenth Amendment concerns are
pretextual. It is settled that the Equal Protection Clause “limits racial gerrymanders in
legislative districting plans.” Cooper v. Harris, 581 U.S. 285, 291 (2017). “[I]f racial
considerations predominated over others, the design of the district must withstand strict
scrutiny.” Id. at 292. The Governor repeatedly expressed concerns that Benchmark CD5
and the vetoed bill were racial gerrymanders that violated the Equal Protection Clause. See,
e.g., JX55; JX56. But in Plaintiffs’ view, this must be pretextual because no court ever held
the Benchmark CD5 violated equal protection.
It is true that no court ever found the Benchmark violated equal protection, but
neither has a court found the district did not violate equal protection. As noted above,
Plaintiffs do not dispute that CD5 was drawn predominantly for race. Cf. Cooper, 581 U.S.
at 291 (noting that proving race was the predominant factor behind a map “entails
demonstrating that the legislature ‘subordinated’ other factors—compactness, respect for
political subdivisions, partisan advantage, what have you—to ‘racial considerations.’”
(quoting Miller, 515 U.S. at 916)). And although they argue tepidly that the Benchmark
satisfied strict scrutiny—including citing witness testimony for the legal conclusion that
the Florida Constitution’s “non-diminishment mandate could provide a compelling state
interest sufficient to justify a race-based district under federal Equal Protection,” ECF
No. 218 ¶ 191—they provided no evidence that Benchmark CD5 was narrowly tailored or
necessary to remediate previous discrimination. Cf. Shaw, 517 U.S. at 909. Nor have they
shown that a State can use compliance with its own laws (here the Fair Districts
Amendment) as a compelling state interest. Cf. Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 600 U.S. 181, 207 (2023) (“Outside the
circumstances of these cases [race-based college admissions], our precedents have
identified only two compelling interests that permit resort to race-based government action.
One is remediating specific, identified instances of past discrimination that violated the
Constitution or a statute. The second is avoiding imminent and serious risks to human
safety in prisons, such as a race riot.” (citations omitted)).

10

Regardless, the court need not determine whether the Governor’s equal protection
arguments are correct. Even if some court later determined that Benchmark CD5 complied
with equal protection, that would not mean a contrary view evidenced pretext. It would not
mean a contrary view was not a reasonable one offered in good faith. Here, Plaintiffs have
not shown the Governor’s expressed equal protection concerns were pretextual.7
In short, Plaintiffs have not shown the Governor’s proffered objections to
Benchmark CD5 or the two-map package he vetoed were pretextual. But even if they had,
that would not be enough. “[A] reason cannot be proved to be ‘a pretext for discrimination’
unless it is shown both that the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis omitted).
Here, Plaintiffs have not shown that discrimination was the real reason.

D.
Underlying Plaintiffs’ claim is the idea that the Governor had an obligation to
approve any legally compliant or “reasonable” map the Legislature might offer. But this
misunderstands how the legislative process works. A governor can veto any legislation he
opposes. Redistricting is an “inherently political process,” Bush v. Vera, 517 U.S. 952,
1014 n.9 (1996), and there are limitless ways districts can be configured. Different actors
in the legislative process will have different views about which map is best. Here, the
Governor opposed the Legislature’s proposed two-map plan. So did Plaintiffs’ witness
Representative Driskell, who voted against it. So did nearly all Democrats in the Florida
Legislature, with all but one voting no. See CS/SB 102, 2022 Sess. (Fla. 2022). In all, 62

7

Plaintiffs offer another pretext argument related to the equal protection issue. Plaintiffs contend
the Governor complained that the Duval-only option had too few black voters to comply with state law but
then supported the enacted plan, which had even fewer. ECF No. 218 ¶ 364 (“In other words: The
Legislature’s Duval-only plan supposedly violated the FDA by diminishing the strength of Black voters as
compared to Benchmark CD-5. Therefore, the Governor’s ‘solution’ to this problem was to diminish it even
further . . . .”). This mischaracterizes the Governor’s objection. He was not objecting to noncompliance
with state law in the abstract. He instead argued that (a) “[b]ecause racial considerations predominated even
in drawing the new [Duval-only] District 5, the Legislature must satisfy strict scrutiny,” and (b) to the extent
one might argue compliance with the state constitution could satisfy strict scrutiny, “there is no good reason
to believe” the proposed map complied with state law because it diminished black voting age population
from 46% to 35%. JX55 at 4-6.

11

legislators voted no on the same bill Plaintiffs say the Governor vetoed based on racial
animus. Surely all 62 had their reasons, but there is no evidence that a desire to harm black
citizens was among those reasons. There is likewise no evidence that the Governor’s veto
was motivated—even in part—by a desire to harm black citizens.
*

*

*

“Federal-court review of districting legislation represents a serious intrusion on the
most vital of local functions.” Abbott v. Perez, 585 U.S. 579, 603 (2018) (cleaned up)
(quoting Miller, 515 U.S. at 915). In considering a challenge like this one, the court must
presume legislative good faith. Id. And “only the clearest proof could suffice to establish
the unconstitutionality of a statute” based on its alleged purpose. Flemming v. Nestor, 363
U.S. 603, 617 (1960). Here, Plaintiffs offer no proof—much less “the clearest proof”—that
anyone in the legislative process acted with any illicit purpose. And that includes the
Governor. We are correct, then, to enter judgment in the Secretary’s favor.

II.
Next, as both sides agree, Plaintiffs cannot succeed without showing both a
discriminatory purpose and a discriminatory effect. See Johnson v. DeSoto Cnty. Bd. of
Comm’rs, 204 F.3d 1335, 1345 (11th Cir. 2000); see also ECF No. 194 at 25-26. Much of
the trial focused on the Legislature’s purpose (or, as noted in Section VI of the court’s
opinion, the Governor’s purpose), and we agree Plaintiffs have not met their burden as to
purpose. But as an independent basis for rejecting Plaintiffs’ claims, I conclude they have
not met their burden on the effects prong either.
In recent years, there have been relatively few decisions addressing Fourteenth
Amendment vote dilution in the context presented here: redistricting of single-member
districts. In fact, Plaintiffs have pointed to no case in which a court did what Plaintiffs ask
us to do here: conclude in a non-gerrymandering case that a single-member district violated
the Fourteenth Amendment by diluting minority voting strength. Typically, Plaintiffs bring
vote dilution claims under § 2 of the Voting Rights Act. This is because after the 1982

12

VRA amendments, a successful plaintiff need not show discriminatory purpose—it is
enough to show discriminatory effect. See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).8
Plaintiffs advance no § 2 claim here, presumably because they cannot meet the
effects test the Supreme Court laid out in Thornburg v. Gingles. So Plaintiffs argue—as
they must—that a § 2 vote dilution claim requires a greater showing as to effect than a
Fourteenth Amendment claim does. In other words, they argue, they can show
discriminatory effects under the Fourteenth Amendment even in circumstances where
Supreme Court precedent establishes there are no discriminatory effects for § 2 purposes.
ECF No. 218 ¶¶ 232-39, 397-405. I am unconvinced.
A § 2 claim requires “proof that ‘the political processes leading to nomination or
election . . . are not equally open to participation’ by members of a protected class ‘in that
its members have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.’” Brnovich v. Democratic
Nat’l Comm., 141 S. Ct. 2321, 2332 (2021) (emphasis in Brnovich) (quoting § 2 (codified
at 52 U.S.C. § 10301(b))). Similarly, a Fourteenth Amendment vote dilution claim requires
a showing “that ‘the political processes leading to nomination and election were not equally
open to participation by the group in question—that its members had less opportunity than
did other residents in the district to participate in the political processes and to elect
legislators of their choice.’” Id. at 2331-32 (emphasis omitted) (quoting White v. Regester,
412 U.S. 755, 766 (1973)). That means Plaintiffs have the same burden of showing
discriminatory effects whether they bring their claim under § 2 or the Fourteenth
Amendment. Cf. Abbott, 585 U.S. at 626 n.1 (Sotomayor, J., dissenting) (“The Fourteenth
Amendment and § 2 of the [VRA] prohibit intentional ‘vote dilution,’ i.e., purposefully
enacting ‘a particular voting scheme . . . “to minimize or cancel out the voting potential of

In Mobile v. Bolden, 446 U.S. 55 (1980), the plurality “declared that, in order to establish a
violation either of § 2 or of the Fourteenth or Fifteenth Amendments, minority voters must prove that a
contested electoral mechanism was intentionally adopted or maintained by state officials for a
discriminatory purpose.” Gingles, 478 U.S. at 35. In response, Congress “revised § 2 to make clear that a
violation could be proved by showing discriminatory effect alone.” Id.
8

13

racial or ethnic minorities,” an action disadvantaging voters of a particular race.’” (quoting
Miller, 515 U.S. at 911)).
In amending § 2, Congress took language “almost verbatim from White,” a
Fourteenth Amendment vote dilution case that “came to have outsized importance in the
development of [the] VRA case law.” Brnovich, 141 S. Ct. at 2331-33; accord Chisom v.
Roemer, 501 U.S. 380, 397 (1991) (“The statutory language [in § 2] is patterned after the
language used by Justice White in his opinions for the Court in White v. Regester and
Whitcomb v. Chavis.” (citations omitted)). Even before Brnovich highlighted the clear
connection, the Eleventh Circuit recognized that “the Supreme Court, historically, has
articulated the same general standard, governing the proof of injury, in both section 2 and
constitutional vote dilution cases.” Johnson, 204 F.3d at 1344. In short, Congress did not
amend § 2 to create a new and different effects standard; it “revised § 2 to make clear that
a violation could be proved by showing discriminatory effect alone and to establish as the
relevant legal standard the ‘results test,’ applied by [the Supreme] Court in White v.
Regester.” Gingles, 478 U.S. at 35; accord Chisom, 501 U.S. at 395 n.22 (1991) (“Congress
explained that its purpose in adding section 2(b) was to ‘embod[y] the test laid down by
the Supreme Court in White.’” (alteration in Chisom) (quoting Senate Report)); see also
Brnovich, 141 S. Ct. at 2331 (noting that “the words the Court chose [in White] would later
assume great importance in VRA § 2 matters”).9
As noted above, after Congress made § 2 cases easier to prove by removing the
intent requirement, most vote dilution plaintiffs pursued their claims under § 2, not the
In Gingles, the Court surveyed the amendment’s legislative history, which included a frequently
cited Senate Report. 478 U.S. at 43-44. The Court noted that “[f]irst and foremost, the Report dispositively
rejects the position of the plurality in Mobile v. Bolden, which required proof that the contested electoral
practice or mechanism was adopted or maintained with the intent to discriminate.” Id.
9

The intent test was repudiated for three principal reasons—it is “unnecessarily divisive
because it involves charges of racism on the part of individual officials or entire
communities,” it places an “inordinately difficult” burden of proof on plaintiffs, and it
“asks the wrong question.” The “right” question, as the Report emphasizes repeatedly, is
whether “as a result of the challenged practice or structure plaintiffs do not have an equal
opportunity to participate in the political processes and to elect candidates of their choice.”
Id. (citations omitted).

14

Fourteenth Amendment. So it was in the context of § 2 that the Supreme Court developed
a framework for evaluating discriminatory effect. That framework requires a showing,
among other things, that the minority group “is sufficiently large and geographically
compact to constitute a majority in a single-member district.” Gingles, 478 U.S. at 50. This
is because “[u]nless minority voters possess the potential to elect representatives in the
absence of the challenged structure or practice, they cannot claim to have been injured by
that structure or practice.” Id. at 50 n.17; accord Growe v. Emison, 507 U.S. 25, 40 (1993).
Plaintiffs here have not proven this. In fact, to have the black-performing district Plaintiffs
sought, the Legislature would have to join black voters from urban areas in Tallahassee
and Jacksonville—cities 160 miles apart—along with a long, narrow stretch of sparsely
populated land between.10
It is thus clear that Plaintiffs cannot meet the § 2 vote dilution standard, and—like
the Eleventh Circuit—I “doubt that any plaintiff . . . can establish a constitutional vote
dilution claim where his section 2 claim has failed.” Johnson, 204 F.3d at 1344; accord id.
at 1344-45 (“The parties have cited (and we have found) no case in which a circuit court
has concluded that an at-large or multi-member-district electoral system, although not in
violation of section 2, unconstitutionally dilutes minority voting strength. In the absence
of Supreme Court direction, therefore, we question, as a legal proposition, whether vote
dilution can be established under the Constitution when the pertinent record has not proved
vote dilution under the more permissive section 2.” (note omitted)); Lee Cnty. Branch of
NAACP v. City of Opelika, 748 F.2d 1473, 1478 n.7 (11th Cir. 1984) (“[I]f the plaintiffs
cannot prevail under the generally more easily proved ‘results’ standard of section 2, it is
unlikely that they could prevail on their constitutional claims in any event.”); Lucas v.

In their proposed findings, Plaintiffs assert that “[f]or North Florida’s Black voters to have a
meaningful chance of electing their preferred candidates, they required a ‘Black-performing’ district—i.e.,
one in which Black voters comprised a large enough proportion of the population to exert a significant
influence on elections.” ECF No. 218 ¶ 136. They further assert that “from 1992 until 2022, there was a
Black-performing district in Northern Florida, anchored in Jacksonville.” Id. ¶ 138. They acknowledge that
none of those comprised a majority of minority voters, and the exhibit they rely on, see id., shows that none
of the referenced districts was “geographically compact.”
10

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Townsend, 967 F.2d 549, 556 (11th Cir. 1992) (“[T]he district court’s factual findings
regarding plaintiffs’ failure to show either discriminatory effect or discriminatory intent
[as to constitutional claim] are equally fatal to plaintiffs’ Section 2 claim.”).11
Regardless, even if a Fourteenth Amendment vote dilution claim requires a lesser
showing of discriminatory effect than does a § 2 vote dilution claim, Plaintiffs still must
show some discriminatory effect. See Johnson, 204 F.3d at 1345 (“Even if we assume that
it is possible, as a matter of law, to prevail on a constitutional claim where no section 2
violation can be in fact established, Plaintiffs here have not proved their constitutional
claim.”). They must show, at the least, “that the political processes leading to nomination
and election were not equally open to participation by the group in question—that its
members had less opportunity than did other residents in the district to participate in the
political processes and to elect legislators of their choice.” White, 412 U.S. at 765-66.
Plaintiffs have not done that.
At best, Plaintiffs have shown that a different arrangement might lead to better
outcomes for candidates black voters generally prefer. But they have not shown that black
voters had less opportunity than other voters. They have not shown that there was less
opportunity for black voters to participate in the political process. Cf. Bolden, 446 U.S. at

Plaintiffs’ suggestion that the Supreme Court provided a “clear holding in Strickland that the
Gingles preconditions ‘do[] not apply [where] there is intentional discrimination against a racial minority,’”
is beyond misleading. ECF No. 218 ¶ 239 n.6 (alterations in Plaintiffs’ brief) (quoting Bartlett v. Strickland,
556 U.S. 1, 20 (2009)). Strickland provided no such “clear holding.” For one, the purported “clear holding”
is in Justice Kennedy’s plurality opinion, joined by just two other Justices. Second, that opinion avoided
the issue altogether. That case—a § 2 case—did not “involve allegations of intentional and wrongful
conduct,” and the Court made clear that it “therefore need not consider whether intentional discrimination
affects the Gingles analysis.” Strickland, 556 U.S. at 20. The plurality did say that its “holding does not
apply to cases in which there is intentional discrimination against a racial minority,” id., but it certainly did
not conclude that a constitutional vote dilution claim can survive without meeting the Gingles prerequisites.
In fact, in another case that Plaintiffs misleadingly cite—Georgia State Conference of NAACP v. State, 269
F. Supp. 3d 1266, 1278 (N.D. Ga. 2017)—a three-judge panel cited Strickland and noted that the Supreme
Court left open the issue of how Gingles applied to intentional discrimination claims. Plaintiffs cited this
case to suggest that Gingles “should be relaxed” in intentional dilution claims, ECF No. 218 ¶ 239 n.6, but
that court dismissed an intentional dilution claim because Plaintiffs did not sufficiently allege facts to
support all Gingles prerequisites. NAACP, 269 F. Supp. 3d at 1281-85; see also Thompson v. Kemp, 309 F.
Supp. 3d 1360, 1362, 1365-66 (N.D. Ga. 2018) (Martin, J.) (three-judge court also dismissing Fourteenth
Amendment vote dilution claim for failure to allege facts supporting Gingles prerequisites).
11

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73 (plurality) (noting that black voters “register and vote in Mobile ‘without hindrance,’”
and that electoral defeats of black-preferred candidates “alone does not work a
constitutional deprivation”); see also Osburn v. Cox, 369 F.3d 1283, 1288 (11th Cir. 2004)
(rejecting Fourteenth Amendment claim and noting plaintiffs had not alleged “that they
were prevented from registering to vote or from voting at all,” but instead alleged “they
were outvoted in relation to selecting the candidate of their preference”).
Plaintiffs do not argue that the Legislature had an obligation to maximize the number
of black-performing districts. And although Plaintiffs halfheartedly suggest the Legislature
could not constitutionally reduce the preexisting number of black-performing districts—
see ECF No. 218 ¶ 232 (“[A]ctionable vote dilution includes both claims that votes were
canceled out entirely or—as is the case here—that a particular districting plan was
purposefully conceived to minimize or dilute the strength of a minority voting bloc vis-àvis the preexisting baseline.” (emphasis added) (cleaned up))—they cite no authority
supporting this. Of course, there is no need to consider a “preexisting baseline” if the
question is equality of opportunity. The Fourteenth Amendment ensures that minorities
have no “less opportunity than [do] other residents in the district to participate in the
political processes and to elect legislators of their choice.” White, 412 U.S. at 766. It does
not ensure that they have no less opportunity to elect preferred candidates than they did
under an earlier map the Florida Supreme Court enacted.
Plaintiffs had to prove both discriminatory effects and a discriminatory purpose.
They proved neither. Thus, I concur in the decision to grant judgment in the Secretary’s
favor.12

12

As noted above, I also concur in Sections I, IV (in part), V.A, V.B, VI, and VII.

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